The concept of the presidential recess appointment was devised at a time before even the telegraph was invented. It was a time when communication traveled no faster than a horse could move. When the Senate went into recess, Senators were gone and unreachable. The framers of the Constitution gave the president the power to make recess appointments because there was no other way to fill important positions. Of course there was no doubt what “recess” meant in those situations. These appointments were temporary.
Last year Obama decided that he would redefine the word “recess” as meaning “anytime Senators weren’t in the Capitol building”. The implications, of course, were that the president could fill positions without paying the least attention to the “advise and consent” clause of the Constitution. He unilaterally amended the Constitution.
He appointed board members to the National Labor Relations Board when the Senate was in session but on a break. A federal court has slapped his appointments down.
In the 46-page opinion, the three-judge panel said that “not only logic and language, but also constitutional history” reject the President’s afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.
“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 advice-and-consent requirement,” wrote Chief Judge David Sentelle for the court, “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.”
Frankly, in the age of instant communications, there is no need for recess appointments at all. Still, it is in the Constitution so it will stand. It should never be abused the way this president abused the law, however.
Obama has imperial plans for the presidency. We can only hope and pray that the courts continue to act as the last bulwark against his lawless actions.