Rough week for Obama: He has to follow the Constitution

What the president of the United States refuses to do, a federal appeals court did last week. That is, it respected this nation’s constitutional separation of powers. The Constitution says the president must get Senate confirmation for key appointees unless the Senate is in recess at the time of the appointment, in which case he can make a recess appointment that is valid only until the end of the current congressional session.

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President Obama has little use for this constitutional limit on his power, so he has taken the liberty of making lots of so-called recess appointments even though the Senate was not in recess during these periods. These include the appointment of the entire National Labor Relations Board and of Richard Cordray to head the Consumer Financial Protection Bureau. Obama claimed that the Senate wasn’t in a real session, and they were just gaveling in and gaveling out to keep him from making recess appointments. The Court of Appeals ruled that Obama doesn’t get to decide when a Senate session is real, and struck down all these bogus recess appointments. This could have huge implications. It could invalidate every NLRB decision that’s been made since the current board was appointed. It could invalidate all kinds of regulations written by the CFPB under Cordray’s direction. But more importantly, it re-establishes that the president has to follow the Constitution. And you want to know what’s really interesting here? The practice of gaveling in and gaveling out to prevent the president from making recess appointments didn’t start during Obama’s presidency. It started when George W. Bush was president and Harry Reid used the tactic against him. And Obama was in the Senate at the time! Bush didn’t like it, but unlike Obama, he respected the Constitution and refrained from making recess appointments that he knew would be illegal. It’s too bad we now have a president who has to be forced by the courts to respect the limits on his constitutional authority, but with the way Obama has run things for the past four years, no one should really be surprised.

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