Obama's Bogus Recess Appointments -- That did not take long

Article II Section 2 of the United States Constitution states in part: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Ten days ago, president Obama made what he said were such recess appointments. Obama appointed new members to the National Labor Relations Board and also a head for a new agency created by the Dodd Frank law. The problem, however, was that the Senate was not in recess as required by the Constitution; it was meeting every three days in pro-forma session just so that no recess appointment could be made.

A lawsuit has now been filed challenging the validity of these appointments. The NLRB has taken a position in a pending legal battle, and one of the parties to that lawsuit contends that the NLRB is without power to do that. According to that party, the NLRB can only act if it has a quorum and without the newly appointed members, it cannot muster such a quorum. The new suit is pending in federal court in the District of Columbia. The Obama position is that the president is able to make a recess appointment because the meetings being held by the Senate were not real; the chamber, Obama argues, is actually in recess.

In my opinion, Obama will lose this suit very quickly. The federal courts are extremely unlikely to begin making determinations as to whether or not the Senate is in recess; that decision will be left to the Senate itself. Whether or not Obama likes it, the Senate itself says that it has not been in recess, so there is no basis in the Constitution for the president to bypass the need for Senate confirmation of appointments.

The truth is that Obama's attempt to subvert the Constitution is one that he must know will lose. Indeed, Obama is probably just taking the position in an attempt to help himself with labor in an election year. After all, Obama did all he could to kill the Keystone XL pipeline, a key labor goal. He needed to try something with the NLRB to win back the union bosses. And if the Constitution got in the way, Obama decided he could just ignore it.