The U.S. President cannot determine the U.S. Senate is on recess in order to make recess appointments. This is the ruling of the federal court of appeals in Washington, D.C., on a case involving the appointment of three members of the National Labor Relations Board. A three-judge panel of the court ruled that the appointments “were constitutionally invalid” because the U.S. Senate was not in recess on January 4, 2012 when Obama made the recess appointments. If the president were free “to decide when the Senate is in recess,” it “would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases,” the court opinion reads. Of course, the Senate could also abuse its privilege by declaring itself in session when it is de facto in recess in order to prevent recess appointments. The balance in “checks and balances” implies that neither side is able to render the other impotent to act.
For its part, the White House viewed the ruling as applying only to the three NLRB appointments in the suit, rather than extending to Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB). That appointment too was made on January 4, 2012.
Because the court ruled that the U.S. Senate was not in recess, it stands to reason that any recess appointment made by the president on January 4th is invalid. Even so, White House spokesman Jay Carney said that Obama’s appointment of Richard Cordray was not affected by the court’s decision. “The decision that was put forward today had to do with one case, one company, one court,” Carney said. “It has no bearing on Richard Cordray.” I contend that it does. The ruling states that no recess appointment can be made by the president when the U.S. Senate is not in recess. Even if the Obama administration disagrees with the ruling, to narrow it dogmatically to just three of the appointments made when the U.S. Senate was not on recess (as determined by the court) is nonsensical. Besides offending reason itself, the “reasoning” evinces a tendency in the White House to evade the very notion of constraint. This is the “red flag” in this particular case study. In other words, it is the aspect that could easily be missed but should alarm us all. It may portend future scandal in the Obama White House with respect to the rule of law.
Source:Tom Curry, “White House Sees No Impact of Court Ruling on Finance Protection Agency,” NBC News, January 25,