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Ordered Liberty

In Court’s Slap Down of Obama Overreach, ‘The’ Makes All the Difference

January 25th, 2013 - 3:10 pm

The D.C. Circuit Court of Appeals today invalidated one of President Obama’s most despotic overreaches to date: his attempt to use the Constitution’s recess appointment power to make appointments despite the absence of a recess. Judge David Sentelle’s opinion for the three-judge panel makes a powerful case for an originalist interpretation of the relevant clause (Art. II, Section 2, Clause 2).

The case involves our organized labor-loving president’s effort in January 2012 to stack the National Labor Relations Board with three members he obviously did not believe the Senate would confirm — another iteration of the Constitution-flouting ideology that led Obama to appoint numerous “czars” in an end-run of the Senate confirmation process. (At the same time he “recess-appointed” the three NLRB members, Obama also purported to appoint a left-wing chief of the constitutionally dubious Consumer Financial Protection Bureau — a Dodd-Frank monstrosity to which Republicans object. The CFPB “recess appointment” was not involved in the case decided today, but the court’s rationale surely spells doom for it as well.)

The problem for Obama was that the Senate was not in recess. To be sure, it was not doing much business at the time and was, in the main, only technically in session. Nonetheless, its official session had not come to an end.

As the court observed, the recess appointment power is a relic of our early history, when Congress would break for several months at a time and lawmakers could not hop on a flight back to Washington at the drop of a hat. It was meant as a “stopgap for times when the Senate was unable to provide advice and consent,” the Court reasoned, not as an exception that would swallow the rule of Senate confirmation. That rule, the Supreme Court has noted, was designed as a check against executive abuse of “the power of appointment to offices,” which was “one of the American revolutionary generation’s greatest grievances” against the British crown — “the most insidious and powerful weapon of eighteenth century despotism.”

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