U.S. Rep. Diane Black, a Republican from Tennessee, has announced she will sponsor a House resolution condemning President Obama for using “recess appointments” to fill vacant slots at the National Labor Relations Board and at the Consumer Financial Protection Bureau.
Here’s how she put it in her press release Tuesday:
“It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess,” said Black. “These appointments are an affront to the Constitution. No matter how you look at this, it doesn’t pass the smell test. I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”
Let’s look at that last sentence once again, shall we?
“I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”
Return to Washington from where? From the recess that they’re not having?
And why can’t the House consider that resolution say, today, three days after Black sent out that release? Because they’re still not in session to do the nation’s business, and haven’t been since before Christmas?
Later in her press release, the congresswoman registers the following complaint:
“… the NLRB appointments were jammed through by the president before the Senate even had the chance to consider the appointees. Their names were only put forward on December 15th, a mere two days before the Senate recessed for the holiday.”
Again, “a mere two days before the Senate recessed for the holiday”? You don’t say,
Black’s statement further complains about “an affront to the Constitution.” Let’s look at that a little more closely as well:
The Senate was given the power to advise and consent on appointments as a means of ensuring that the president appoints qualified people. That authority was never intended to be twisted into a tool for forcing federal agencies to stop doing business, which Senate Republicans admit is their goal. By refusing to fill those vacancies — by refusing to even allow a vote on filling those vacancies — they are trying to shut down agencies they don’t like.
Nothing in the Constitution gives them that authority. Nothing.
(Without new board appointees, the NLRB would not have a quorum and thus could not operate or make decisions. Without a director, the CFPB could not carry out many of its legal duties as well.)
As insurance against such abuse by Congress, the drafters of the Constitution gave the executive branch the power to appoint officials for limited terms whenever Congress went into recess and was not available to do its job. By any legitimate definition, Congress has been in recess since before Christmas and remains in recess today, as Black inadvertently acknowledges in her statement.
By pretending that it is never in recess, Congress is trying to permanently strip the executive branch of its recess-appointment powers. Never again can a president make such appointments, because never again will Congress admit it is in recess. Like the use of advise and consent to shut down agencies, it is an attempted de facto rewriting of the Constitution itself.
(And yes, Democrats used that same technique to block recess appointments under President Bush. The only thing you can say in their favor is that at least they were attempting to block nominees they did not like — a legitimate use of their constitutional authority — rather than trying to shut down entire agencies.)
It is certainly fair to argue that with his response, President Obama is himself stretching if not exceeding his constitutional authority. Under the circumstances, however, his only alternative would be to do nothing and allow the legislative branch to illegally poach on executive functions and permanently if unofficially alter the Constitution.
It is not a good situation.
– Jay Bookman