I told you so

In early January 2012, I objected to President Obama’s use of his recess appointment powers to fill government jobs that were being intentionally left vacant by a filibustering Senate minority.

Although the Senate was gaveling itself into “pro forma” sessions every few days to avoid going into a “recess,” and allowing Obama to make temporary appointments – a tactic invented, and then conveniently discarded, by our own Senate Majority Leader Harry Reid – I said at the time Obama’s move was dangerous and unprecedented.

And now, the U.S. Court of Appeals for the District of Columbia Circuit has agreed. In a 46-page ruling issued Friday, the court held that not only was the Senate not in recess at the time Obama made his appointments, but the president couldn’t have filled the open jobs anyway, since his recess appointment powers only apply to jobs that come open when the Senate has adjourned for good.

The decision invalidates rulings of the National Labor Relations Board, where three members have just learned their recess appointments are invalid and their work is void. This was an entirely foreseeable – and entirely avoidable – result of President Obama’s clever attempt to avoid the plain language of the Constitution.

The ruling – which the Obama administration has vowed to appeal to the U.S. Supreme Court – also throws into question the appointment and decisions of Richard Cordray, who was appointed in similar fashion to head the Consumer Financial Protection Bureau.

According to the D.C. Circuit, the Constitution clearly prefers presidential appointments be made “with the advice and consent of the Senate.” Only in the rare period when the Senate has adjourned at the end of its session and before a new one begins – and thus senators are unable to give advice and consent – is the president permitted to make temporary appointments. That period of time doesn’t include vacations or short breaks that often take place during a session, the court held. Otherwise, “The president could simply wait until the Senate took an intrasession break to make appointments, and thus ‘advice and consent’ would hardly restrain his appointment choices at all.”

Although the president’s Office of Legal Counsel argued gamely the president could determine when the Senate was in recess, the court rejected that idea: “Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” justices wrote.

Finally, the court ruled, although the normal appointment process can be politically difficult and recess appointments are relatively easy, that’s not the point. “In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the ruling reads. “It bears emphasis that convenience and efficiency are not the primary objectives – or the hallmarks – of democratic government.”

And that’s what we’re really talking about here: Obama and Senate Democrats could not get their preferred choices (all well-qualified nominees, by the way) confirmed because of Republican obstructionism. So instead of seeking a political solution, or taking the case to the people, the president tried to circumvent the Senate.

It bears noting that Reid shares some of the blame. He invented the idea of “pro-forma” sessions to prevent former President George W. Bush from making recess appointments to which Democrats objected. One would think a longtime legislator and institutionalist such as Reid would jealously guard Senate prerogatives and renounce Obama for trying to go around Senate procedures, especially one that Reid himself created. Instead, Reid did not object to the president’s actions because they allowed for short-term political gain.

Politics can certainly be messy at times, but there are rules to the game. In our system, those rules are called the Constitution, and they must be followed. We ignore them at our peril.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.