Wednesday, January 4, 2012

President Obama setting a Dangerous Precedent..

In something of a change of pace, I won't be commenting on the ongoing GOP race for the White House today and will instead focus my "wrath" on the current occupant of that building: President Barack Obama.

What has the President done to incur my wrath? To be fair, he makes a lot of decisions that either make me scratch my head or cause a "epic fail" facepalm moment. Oddly enough, the fact he has broken many of his campaign promises is not all the interesting to me since I am always quite cynical when it comes to the promises made by any politician, regardless of party. I am more concerned about the actions they DO take, and today the President made one doozy of a decision..One with very real consequences (both immediate and long term).

The decision I am talking about is when the President announced four Recess Appointments (which I will explain shortly) today. These appointments including three people to the National Labor Relations Board and one Richard Cordray to head the newly created Consumer Financial Protection Bureau. Now what are recess appointments?

Normally when a President wants to appoint someone to a federal government body (aka Cabinet position, federal judges, ambassadors, etc), he must submit his choice to the United States Senate for approval. This is based on the "Advise and Consent" clause enshrined in Article II Section 2 of the U.S. Constitution. The only time the President can normally get around this is when the Senate is in recess (no not when they go outside and play, though I wouldn't be shocked if they did that), which is when they are not conducting business and/or adjourned. Further, there are two kinds of recess appointment: (both have been ruled constitutional by the U.S. Supreme Court)

1. Intrasession Appointment- This is an appointment made during a Senator recess while the Senate is still in session (aka during say the holidays).
2. Recess Appointment- This is an appointment made when the Senate is not only on recess but also not in session, aka when they are adjourned for long periods of time (generally from the fall til January).

Further, said recess appointee can only hold said position for a short amount of time (currently the usual time is 1 fiscal year), at which time they either must be submitted officially to the Senate or simply leave that office.

Not surprisingly the Senate figured out some years ago a way to keep the President from doing such appointments too easily, in which they would hold informal but official Senate meetings every three days so they aren't technically in recess. It is a tactic used against many a President to make sure they aren't abusing their executive power. Here is where the President crossed a line today..the Senate wasn't technically on recess or adjourned for the session. In fact the Senate has been holding informal but technically official meetings every couple of days lately to prevent such an action and yet the President has simply gone and done it anyway.

Now considering the back and forth the President has been having with Congressional Republicans of both houses of Congress, such an action isn't really that shocking but it is still a very bold and worrying move by the President. To date, no President has ever tried such an action before and as such, no one really knows what to do about it. To be clear, there will be some immediate retaliation against the President (possibly even from Senate Democrats), likely in the form of blocking ALL appointments by the President for the foreseeable future but that is nothing compared to the dangerous precedent it sets. What the President has done is arguably unconstitutional and at best it is a invitation for lawsuits by anyone "wronged" by the actions of the appointees and as worst is an affront to the separations of powers that is the backbone of the U.S. Constitution. If such an action stands, what is stop future Presidents from simply appointing people at will every time the Senate leaves the building?

And for that reason, I strongly call on President Obama to recall his decision to appoint these four people and instead go through the proper path of appointment/nomination as is dictated by the U.S. Constitution or else he will be remembered in the history books as the man who attempted to wreck the very balance of power that is at the heart and soul of our federal government...Not the kind of honorable mention anybody wants right?


The views and opinions expressed in the above piece is solely those of the author's and not that of the Modern Whig Party or any other political organization.


  1. I'm no fan of the president, but isn't holding "technically official" meetings for the ongoing and specific intent of depriving the president from appointing ANY nominees to these positions, not for matters of substance, but merely as an obstructionist tactic the real danger?

  2. Except that tactic, while annoying and downright mean-spirited at times, it fully constitutionally. The 11th Circuit Court of Appeals in Evans vs. Stephen affirmed the Senate has sole authority to decide what a recess is and how long/short it need be. So while their tactics may be aggrevating, they are within their authority to do so. What the President has done is dictate to the Senate that he knows better than they do what justifies what a "recess" is when the federal courts have established he nor any other President has any such authority. Therefore, what he has done is Unconstitutional, plain and simple.

    Further, holding informal but official meetings every few days to keep the Senate from going on "recess" is no worse than a President recess appointing folks who they know damn well won't pass the sniff test and do so purely to move their own political agenda. Both Bush and Obama are guilty of this tactic. Further, Harry Reid started this tactic during the final years of Bush's term to prevent him from making any more recess appointments so the GOP's current tactics originated with the Democrats.

    So while I make no attempt to defend the boorish tactics of the Senate GOP, they are fully within their right to use these tactics as laid out by judicial precedent...Does there need to be a change in how such nominations work? Most definitely, but until such a reform becomes law, they can continue doing what they are doing now.

    Ultimately, even IF what the Senate Republicans are doing unconstitutional or questionably legal (neither of which is true), one illegal action should never EVER justify another. Especially when your very oath of office tells you to "preserve and protect" the Constitution. Such thinking is downright childish.