Some thoughts on President Obama’s recess appointments, now two weeks old:
- Clearly it’s appallingly hypocritical, even by the low standards of Congress, for Democrats now to oppose a tactic they invented just a few years ago to frustrate President Bush’s recess appointments.
- I think that Jonah Goldberg is right that Obama did this in order to try to pick a fight, for political purposes, and that Republicans are smart not to take the bait. And indeed, they don’t have to. There are plenty of other parties that have standing to challenge this appointments in court.
- In regard to the “Consumer Protection” agency, they will certainly win too, because the law is clear. Regardless of the legitimacy of the Cordray appointment itself, the law makes clear that Cordray will have no power until he is confirmed by the Senate, which still hasn’t happened (and now probably never will).
- John Elwood makes the case that the appointments are valid, because otherwise the Congress would have the power to frustrate the President’s constitutional authority. But I find John Yoo and Richard Epstein’s analyses more convincing. Both of them point out that President Obama is arrogating the authority to decide for Congress whether Congress’s session is a real one. To the contrary, the Constitution always grants each branch of government the power to make such decisions itself. (Epstein goes further and challenges the entire power of recess appointments as it is now used, but I don’t think we need to reach that.)
- The President’s claim that the Senate was not really in session because it didn’t do any work is particularly problematic because it actually did do some work during the session in question. This seems to make the White House’s position entirely untenable.
- Making the White House’s position even more absurd is the fact that just two years ago the Justice Department wrote an opinion acknowledging that the Senate could block recess appointments with pro forma sessions. (The letter was written by Elena Kagan, now a Supreme Court justice.) The White House sought and obtained a new opinion just two days before the recess appointments.