The continuing debate over the validity of President Obama's exercise of the recess appointment power when the Senate is not in not in recess has some more entrants. Writing in the Wall Street Journal, Yale law professor Bruce Ackerman calls on President Obama to release the legal opinions on which he relied to make these dubious appointments. Also in the Journal former Circuit Judge and now Stanford law profesor Michael McConnell shreds the legal justification for these appointments, noting that should they stand the effect will be to " push unilateral executive power beyond constitutional and customary limits. ... [T]his president lacks a proper respect for constitutional checks and balances. ... Democrats ... like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good."
The basic constitutional problem is that Article I, section 5 "requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break)." Moreover, the pro forma sessions of the Senate, designed to prevent recess appointments, were adopted by the Democratically run Senate when G.W. Bush was President, and President Bush acquiesced in the Seante's declaration that it was not in recess. Even Laurence Tribe has admitted that it would be absurd to contend a suspension of Senate business for up to a fortnight is a recess.
Defenders of President Obama's action say that the President must have a broad recess appointment power to effectuate his obligation to take care to execute faithfully the laws. A forthcoming student note in the Yale Law & Policy Review, written by Alexander Platt, a current Yale 3L, argues (as does Laurence Tribe) in this vein that the pro forma sessions should be ignored and the recess appointment power be treated under the vague, subjective test that the Court has employed with respect to the removal power. Most notably, in Morrison v. Olson, the Court upheld very significant limits on presidential removal of an independent counsel, reasoning that "the real question is whether the removal restrictionsare of such a nature that they impede the President's ability to perform his constitutional duty ... ." There are at least two major problems with this line of reasoning. First, the Court simultaneously applies a much more textual approach to separation of powers issues when the Constitution speaks directly and specifically. Chadha v. INS is perhaps the foremost example. Here, the Constitution speaks clearly in Article I, section 5, clause 4, so invocation of the subjective "impede-his-duty" test is not applicable unless and until you surmount the antecedent hurdle posed by the Constitution's text. Second, even if one does apply that squishy test, it is by no means clear that the President's constitutional duty to enforce the laws is impeded by pro forma sessions. This is not an era in which the Senate will disappear as a body for months on end. The President will have the chance to have his nominees considered. And even if the frustration is the filibuster, that lies within the Senate's power to alter its own rules -- it has nothing to do with whether the Senate is in recess.
I conclude that this President is an even more unreasonable exponent of unilateral (and, in this case, unconstitutional) executive power, than any of his recent predecessors. It is a bad business to let this stand. As Robert Jackson said in Korematsu, this "principle," once imbedded, "lies about like a loaded weapon ready for the hand of any" President that wants to avoid the Senate's obligation and right to deliver its advice and consent (or not) to presidential appointments of principal officers of the United States.
UPDATE: Here is Victor Davis Hanson with a somewhat related take.
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