President Obama's lawless Jan. 4 installation of a new director of the Consumer Financial Protection Bureau goes to the heart of his loose interpretation of our Constitution. Mr. Obama's actions show he believes checks and balance apply only to the other branches of government, not to him.
While Virginia A. Seitz, assistant attorney general for the Office of Legal Counsel, created an after-the-fact memo to justify the action, it carries no legal weight. Her office is a creature of the executive and as such is not qualified to rule definitively on executive actions. It's not the prerogative of the White House to define when the Senate is in recess. Whether a session is pro forma or not, it is still a session regardless of what the executive thinks. Moreover, the issue is not whether the Senate was unavailable to exercise its power to advise and consent, but rather its unwillingness to do so. Congress is a sovereign body and the executive has no right to determine its schedule or priorities.
The Seitz memo alludes to the "Roosevelt option," the controversial use of the recess appointment by President Theodore Roosevelt in 1903 literally between the two pounds of the gavel denoting the end of one session of Congress and the start of a second. In this tradition, the memo notes that the Office of Legal Counsel has "not formally concluded that there is a lower limit to the duration of a recess within which the president can make a recess appointment," so presumably Mr. Obama could claim that any period when the Senate was "unavailable" would be sufficient for him to exercise this power.
The recess appointment authority has drifted far from what was originally intended by the framers of the Constitution. Article II Section 2 allows that "the president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." As a plain reading of the text indicates, this was intended to apply to openings that actually occurred when the Senate was in recess, such as when someone in a relevant office resigned, died or was incapacitated. It was a matter of reasonable convenience for the executive, not an invitation for the president to obviate the will of the people. This was the standard interpretation of the text for over a century.
Congress further checked the power of the executive by stipulating no salary would be paid to anyone given a recess appointment if the position to which they were appointed existed during the prior Senate session. This law withered over time as various parties used recess appointments to their advantage, but it was sound legislation while it lasted and prevented much of the contemporary abuse of the power. It should be revisited.
Unchecked power is inimical to liberty. Any legal reasoning that supports unlimited executive authority is thus false on its face. President Obama's play for absolute appointment-making sovereignty should be checked while there's still a republic to save.
The Washington Times
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