- The Washington Times - Tuesday, January 24, 2012

ANALYSIS/OPINION:

Now that the Senate has returned from its non-recess, it will be interesting to see what, if anything, Senate Republicans will do about the non-recess recess appointments President Obama made in their non-absence.

Judging by what they have done thus far in response to Mr. Obama’s trampling of the Constitution - a whole lot of kvetching and not much else - it’s hardly encouraging.

Oh, wait. After fulminating at some length about it, Sen. Mitch McConnell, Kentucky Republican, did turn the issue into a soon-to-be fundraising pitch under the letterhead of his 2014 Senate re-election campaign.

In an email sent out Jan. 10 to subscribers to redstate.com and addressed to “Dear Fellow Conservative,” the Senate minority leader complained that Mr. Obama “arrogantly circumvented the American people with an unprecedented ‘recess’ appointment of more unelected, unaccountable, unconfirmed ‘czars.’ “

Calling Mr. Obama’s non-recess recess appointments an “outrageous affront to the American people,” Mr. McConnell inveighed that the move “ventures into uncertain legal territory, threatens the constitutional process for confirmation, and fundamentally endangers the constitutional role of Congress to provide a check on the excesses of the executive branch.”

“We can’t tolerate another Obama executive power grab,” the Kentuckian thundered. The emphasis there, apparently, was on “another,” as he clearly has tolerated this one.

When on Jan. 4, Mr. Obama made the appointments to the new Consumer Financial Protection Board and the National Labor Relations Board, Mr. McConnell complained, “What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress.

“This was surely not what the Framers had in mind when they required the president to seek the advice of the Senate in making appointments,” he said. He was right, of course, but when all was said and done, he had said much but had done little.

Then, on Jan. 12, the Justice Department of Mr. Obama’s lackey attorney general, Eric H. Holder Jr., issued an ex post facto defense of the president’s action. Did anyone seriously expect Mr. Holder - the most nakedly political attorney general since John Mitchell in the Nixon administration - to slap Mr. Obama’s wrist and say, “You can’t do that”?

Similarly, did anyone really think the president’s Senate handmaiden, Harry Reid, would object to Mr. Obama stepping all over the Senate’s prerogatives? To the contrary, the Nevada Democrat - who, after retaking control of the Senate in 2007, used the very same pro-forma-session procedures to prevent President George W. Bush from making recess appointments during his last two years in office - promptly did a 180-degree pivot and said he backed the president’s move, though, curiously, he didn’t explain what was different this time.

Giving the back of his hand to the quaint notion of separation of powers (specifically, concluding that the executive branch can unilaterally decide when the legislative branch is or isn’t in session) Mr. Holder’s analysis was rightly criticized by Sen. Chuck Grassley, Iowa Republican, ranking member of the Judiciary Committee, who called on the Senate “to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution.”

Mr. McConnell should have picked up that challenge and immediately taken the Obama administration to federal court, challenging the constitutionality of the appointments and seeking an injunction. Had Mr. Bush done the same thing, Senate Democrats would have been in federal court the next morning.

Instead, Mr. McConnell, writing as “Team Mitch,” ended his email by urging recipients to “[m]ake sure your voice is heard by signing our petition - and tell Obama to stop playing politics with the Constitution.” Though it doesn’t expressly ask for contributions, the names of those who sign the petition almost certainly will go onto a mailing list for future reference.

Rather than soliciting signatures for a petition that has zero likelihood of persuading Mr. Obama to withdraw the appointments, Mr. McConnell would have been better served filing a petition of a different sort - namely, petitioning a federal court to issue an injunction blocking these clearly unconstitutional appointments.

Happily, two business groups, the National Federation of Independent Business and the National Right to Work Foundation, are picking up the slack. They have filed suit to block the appointments.

Meanwhile, one can only hope that with Republicans likely to take control of the Senate after November (because 23 of the 33 seats up this cycle are held by Democrats, and the GOP only needs to net four seats to assume the majority) the new GOP senators will be in the mold of the 2010 freshmen … Rand Paul, Ron Johnson, Marco Rubio - and help elect new, less feckless Senate leadership in the 113th Congress.

Peter Parisi is an editor at The Washington Times.

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