Our democracy was threatened early this year by a presidential power play. On Jan. 4, President Obama announced his appointments of three individuals to the National Labor Relations Board, plus Richard Cordray as director of the Consumer Financial Protection Bureau. These appointments were unprecedented and raise serious constitutional concerns.
The Constitution gives the president the authority to "fill up all vacancies that may happen during the recess of the Senate." But these appointments were made while the Senate was not in recess — something no other president has tried. This attempt to ignore Senate approval sets a dangerous precedent.
The Senate has the power to determine "the rules of its proceedings," and it did not believe it was in recess when these appointments were made. As Senate Majority Leader Harry Reid stated on the Senate floor regarding a similar period in 2007: "The Senate will be coming in for pro forma sessions ... to prevent recess appointments."
What was acceptable in 2007 should be equally acceptable today. Pro forma sessions were never meant to be an open invitation for the administration to appoint whomever it likes to government positions.
Not only was the Senate not in recess when the president made these appointments, it appears that under the Constitution it legally could not have been.
The Constitution provides that neither house of Congress may adjourn for more than three consecutive days without the consent of the other house.
Accordingly, the Senate could not have adjourned its session and gone into recess without the consent of the House, which the House did not give.
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