“This Will Not Do”

Let me just add to Tim’s excellent observations below about today’s NLRB decision, in which a unanimous Court of Appeals held that the president violated the Constitution by making “recess appointments” when the Senate was not, in fact, in recess.

This might sound dry, but it is very important. The power to make recess appoinments is the only exception to the Constitution’s requirement of Senate “advice and consent” for presidential appointments. The more you expand recess appointments, the less you have to deal with Senate confirmation, and — poof! — there goes checks and balances.

At the Court, the administration argued that the President should have the sole, unfettered discretion to determine when the Senate is in “recess,” constitutionally speaking. Under Obama’s legal theory, he could literally wait until the Senate is on a lunch break, and then quickly appoint Chuck Hagel to the Pentagon — and nobody could second guess him. This assertion was so brazen that a shocked Court of Appeals declared: “This will not do . . . This cannot be the law.”

But Obama’s argument — that the Constitution means whatever he says it means — should come as no surprise to those of us who have watched the decline of the Rule of Law these last four years: the Chrsyler bankruptcy, the shoddy attempts to intimidate the Supreme Court, the refusal to defend DOMA, blanket amnesty via executive order, etc.

And for the record, W never made a recess appointment while the Senate was in session, even in “pro forma” session.