Recess Is Not a Presidential Playground
January 28, 2013 - Monday
When President Obama promised to execute the Constitution, who knew he meant to kill it? For four years, the American people have watched this administration treat its founding document--not just with irreverence, but irrelevance. And for once, the courts are doing something about it. On Friday, a three-judge panel put the President in his place with a 46-page tongue-lashing over his decision to make "recess" appointments when the Senate was never in recess to begin with! At the time, members were shocked. Not because Presidents don't make recess appointments (George W. Bush made 171), but because Presidents don't set the congressional schedule.
When they flew home last January, Republicans intentionally left Congress in session so that President Obama couldn't pull a stunt like this. Turns out, the President has about as much regard for congressional rules as he has for the Constitution's. He made a unilateral decision to seat four people the Senate had blocked: three to the National Labor Relations Board (NLRB) and one to the Consumer Financial Protection Bureau. In the history of theUnited States, no President had ever done such a thing. And thanks to the D.C. Court of Appeals, no President will try it again. Chief Justice David Sentelle wrote the opinion--a unanimous one--pulling no punches as to what the court thinks of the White House's arrogance.
"Not only logic and language but also constitutional history" reject the power grab, Sentelle explained. "An interpretation of the 'recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advise-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session, and he is merely displeased with its inaction. This cannot be the law."
As far as the court is concerned, the last 12 months of decision-making never happened. Not only are the appointments invalid--but so are all 300 rulings made by NRLB in the last year. Every action the Board has taken would have to be undone, throwing the President's union pals into utter chaos. "Allowing the President to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle warned.
And unfortunately for President Obama, the ruling may have cost him more than a few political appointees. In a surprising twist, the judges also threw into doubt the entire practice of recess appointments. For the last several decades, Presidents have interpreted "recess" to mean any time Congress adjourns, when in fact, the Founders may have had something much more limited in mind. This court held that appointments should only be valid in the recesses between sessions of the Senate, which is almost always at the end of the year. And, according to two of the three judges, a vacancy would actually have to arise during the recess--not before--for Presidents to name a replacement without Senate consent. It's a much more narrow interpretation of the rule than anyone expected--and it could, if the High Court agrees, take the teeth out of presidential appointment powers altogether.
For now, the White House is far from contrite. This weekend, the administration called the ruling a "historical overreach" (something it would know an awful lot about) and vowed to keep its illegal hires on the job. That may be difficult, as Senators like Mike Johanns (R-Nebr.) call for their immediate resignations. In the meantime, Americans can breathe a sign of relief. The court's intervention proved that this President is a lot of things--but invincible isn't one of them.
Unfortunately, not every court practices the same restraint as the D.C. Court of Appeals. If they did, we wouldn't be debating the fate of marriage in two cases before the Supreme Court. But, thanks to the activists in the lower courts, that's exactly what FRC and the rest of the marriage movement will be doing in late March. As the justices prepare for the marriage cases of the century, FRC is giving them plenty to consider in two new amicus briefs. In partnership with the Thomas More Society, FRC argues on behalf of the Defense of Marriage Act and California's Proposition 8 in two separate filings in the Supreme Court. (To read the briefs, click here and here.)
Fortunately, FRC isn't the only one making the case for natural marriage. Even young leaders like Fox News's Steven Crowder are going to bat for the institution. In his new column, "A Man's Top 5 Reasons to Grow up and Get Married," the newlywed borrows from FRC's research to explain why the government has a vested interest in preserving man-woman marriage. Linking to our Marriage and Religion Research Institute (MARRI), Steven highlights the financial and sexual benefits, the work incentives, and physical rewards of preserving marriage. For anyone hoping to redefine marriage (we're looking at you, Rhode Island), FRC's research should be required reading. "[P]eople need to start being more honest and vocal about the virtues of marriage," Steven writes. "Americans need to stop feeding and buying into the lie we've all been fed. Whether you're young, old, male, female, marriage (when done correctly) will make your life--and this country--better off."
** Don't forget to tune in to this afternoon's "Washington Watch with Tony Perkins" as we talk about the relationship between America's economic problems and the breakdown of the family with FRC's Henry Potrykus. Also, Todd Starnes will join us to talk about yet another military controversy--the removal of crosses from a base chapel in Afghanistan. Don't miss all of this and more at 5:00 p.m. on American Family Radio or TonyPerkins.com.
*** The media kept FRC's General Jerry Boykin busy this weekend, as more people looked for reaction to the women in combat debate. CNN.com published his latest column, "Women in Combat a Dangerous Experiment," and Fox News invited him on the air Sunday to get a front-lines perspective. If you missed the interview, click on the video below.