The White House announced Wednesday that President Obama would recess-appoint Richard Cordray as chairman of the new Consumer Financial Protection Bureau, and three new members to the National Labor Relations Board.
There’s just one problem: The U.S. Senate is not in recess. The decision to appoint these officials nonetheless appears to contradict the Obama administration’s own stated position on the issue. ...According to Obama’s own Justice Department, the president is in the wrong. During a 2010 Supreme Court hearing, Chief Justice John Roberts and Deputy Solicitor General Neal Katyal had this exchange, in which the latter admitted that recess appointments may not be made within three days of adjournment:
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?
MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –
CHIEF JUSTICE ROBERTS: Thank you, counsel.
It's worth recalling that Democrats used the same "gavel-in and gavel-out" tactic time and time again to block President George W. Bush's appointments
The Senate's top Democrat, Harry Reid of Nevada, said in 2007 he would keep the Senate in "pro forma" sessions to block Bush from making an end run around the Senate and the Constitution with controversial nominations. That's exactly what Obama's White House now calls a gimmick. Yet on Wednesday, Reid came out in support of what Obama did.
The Heritage Foundation's Todd Gaziano correctly calls Obama's moves today "a tyrannical abuse of power."
The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise...
Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration...
In other words, through his blatantly lawless activities, the President has initiated a Constitutional crisis.
And we all know that if a Republican President had even publicly considered this option, legacy media would be beating the war-drums for impeachment.
It's high time the clueless John Boehner and Mitch McConnell started playing hardball. Real hardball. Impeachment-style hardball. Heaven knows, there are enough charges to impeach five or six presidents at this point.