Why Obama’s “recess” appointments are unconstitutional

I want to make sure this is documented here for my own record as this is crucially important. The Constitution gives the power to the President to make recess appointments when the Senate is in recess:

Article II, Section 2: – The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

So in order for Obama to make recess appointments, the Senate must be in recess. Here’s what the Constitution says about that:

Article I, Section 5: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

So in order for the Senate to recess more than three days, it must have the consent of the House. But that hasn’t happened, according to the Washington Examiner:

This presents a problem for President Obama, who claims to have just made a recess appointment when the Senate is not actually in recess. The Constitution says the Senate cannot recess for more than three days without the House’s permission. The House has not granted permission, and as a result both houses have been holding pro forma sessions out of constitutional necessity.

There is an argument that pro-forma sessions are just a sham. Obama is not the first to make it. I don’t find it very persuasive, but it’s an argument that some very smart people make.

Yet in this particular case, in which the House has not consented to a Senate recess, the pro forma session does not seem to be the issue. The Constitution is the issue. Without the consent of the House to adjourn for more than three days, the Senate is in session, whether it wants to be or not.



And to top this off, Obama’s own Deputy Solicitor General argued in the Supreme Court in 2010 that Obama could not make a recess appointment unless the recess were longer than three days (via Washington Examiner):

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Obama’s own lawyers argued on his behalf, to keep the NRLB operating without its nominees being appointed, that Obama was unable to recess appoint because the Senate had not been in recess for longer than three days.

But now, Obama argues that the Senate is in recess to fit his agenda, when it is clearly not.

So this is why Obama has violated the Constitution and why you should care. It’s a recess appointment today. Who knows what it will be tomorrow.

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