President Obama has been generating a lot of controversy lately. This time it is over his appointments to the National Labor Relations Board during the Senate’s current recess. Well, according to Mark Mix, President of the National Right to Work Legal Defense Fund, President Obama ignored the fact that the Senate was in session and acted anyway creating a “constitutional crisis”.
The President has the right to appoint anyone he wants to any Senate confirmable position while the Senate is out of session. That appointment lasts until the end of the Senate’s next session. It is called a Recess Appointment and it was created for the convenience of the President so he didn’t have to call the Senate back into session every time he needed to appoint a nominee.
Well the times they are a changin. These days the recess appointment is a powerful political weapon. The Senate (whether it is an angry minority or even a powerful majority) needs 60 votes to avoid a fillibuster and move an appointment to the Senate floor for confirmation. Politicians from both parties have held up a considerable amount of nominees for many sitting presidents as a way to advance political agendas.
Presidents from both parties have relied on the recess appointment to get the more controversial of their nominees through the Senate. This time though the crisis is over how President Obama did it.
The Republican minority, in order to prevent President Obama from recess appointing certain controversial appointments, kept the Senate gaveled in Pro Forma session over the holiday break. That means someone came back every few days and called a session.
The Justice Department told President Obama that it was legal to consider the Senate out of session even though it was kept in pro forma session. He appointed, among others, two new members to the National Labor Relations Board.
Mix, is claiming in a lawsuit that President Obama overstepped his constitutional authority and he may have some support coming from a strange place. Obama nominated Supreme Court Justice Elana Kagan had written a memo arguing the opposite point a few years ago. The Justice Department basically said to ignore it.
He is quoted as saying,
“I think what he said is, ‘I don’t care what the Constitution says here, process be damned, I’m going to do what I want.'”
The question will be, if this ever gets to the Supreme Court how will Kagan feel about President Obama‘s appointments then?