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I remember back a few years (more than I really care to think about now) when I was naughty during grade school and I was made to sit in the classroom while all the other students went outside for recess. That punishment really stung. I wonder if President Obama is feeling a similar sting today?

On Friday January 25, 2013, a panel of the D.C. Court of Appeals declared an executive action taken by the President in January 2012 to be unconstitutional. The President had appointed an agency head and three members to the National Labor Relations Board (NLRB) using a recess appointment. Unfortunately, the Senate, through a procedural loophole, claimed not to be in recess and therefore no recess appointments could occur. Cue the minor constitutional crisis theme music. (I may hold a contest for the most creative song title for my Constitutional Crisis theme song. Stay Tuned)

Today, I am going to explain the advice and consent power of the Senate and the power the Constitution gives the executive branch for making recess appointments. I would also like to refer you to one of my earlier posts about the limitations on executive orders. It may help shed a little more detail on the separation of powers.

Article 2. section 2 of the U.S. Constitution enumerates the powers granted to the Executive (President). Among them are: the power of Commander-in-Chief of the armed forces, the power to grant pardons, the power to make treaties, and the power to appoint ambassadors, Supreme Court Justices, and other public ministers.

The founding fathers did something different with those last powers of making treaties and appointing people to high government offices. They limited the power by requiring another branch of government (the legislative branch) to confirm a nomination. The President may nominate someone to a post but the U.S. Senate is required to give advice and consent for the appointment to be valid.

The Founding Fathers made an unusual choice in doing this. They had already delineated the powers of the legislative branch in Article 1 of the Constitution. Then they created an additional legislative power within Article 2 which is technically dedicated to the executive branch. Why would they do this? Is it possible they realized that the power to appoint was a power too great to vest in just one person?

The Founders were pragmatic, however.  They knew that there might be circumstances when the President needed to make an appointment and the Senate wouldn’t be in session because it was in recess (home for the holidays etc.) The end of Article 2. section 2. provides,” The President shall have the 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 the next Session.”

Past presidents have used the power without controversy. Recently, however, a de facto power struggle between the legislative and executive branches has been escalating into gridlock on executive appointments. Both parties have engaged in the tactic of senators placing secret holds on nominations for political advantage. Some presidents have attempted to circumvent the requirement by waiting for the Senate to recess and making the appointment. President George W. Bush did this to appoint John Bolton, whose nomination had been held up by democrat senators, to be ambassador to the United Nations.

The Senate retaliated by refusing to recess. They initiated pro forma sessions where one senator would gavel open and close an empty Senate chamber every couple of days. The Senate argues that the letter of the law allows the Senate to remain in session when no one is there. Until last year, Presidents respected that opinion and there was an uneasy truce. President Obama decided to change the status quo last January by recess appointing nominees the Senate had on hold. This occurred while the Senate was still in pro forma session.

At this point I should disclose that my uncle was nominated to be U.S. Surgeon General by President George W. Bush, but his nomination was opposed by the late Senator Ted Kennedy (D) Massachusetts. The democrats even initiated a pro forma session to prevent his recess appointment and my uncle eventually withdrew his name from consideration to ensure that the post could be filled.

I will not make a judgment on the validity of the Senate holding pro forma sessions. I will however comment on the backlash to President Obama’s decision to take such a drastic step as to appoint minor positions when there was no imminent emergency. I wonder why any president would be so desperate to gain some minimal advantage that he would risk losing power in the inevitable constitutional challenge?

And a challenge did occur. A private business that received an adverse labor ruling from the NLRB (with the newly appointed members) challenged the decision on due process grounds that the board members were appointed improperly. (In future posts I will attempt to explain procedural challenges and why the policy of non-justiciability keeps the different branches from directly suing each other on these matters, but there is no room here.)

A D.C. Court of Appeals panel wrote in a majority opinion that not only were President Obama’s recess appointments unconstitutional because he made them while the Senate officially remained in session, but they also concluded, in Dicta (opinion not based in case law), that the different branches of government could not dictate the rules specifically granted to another branch of government because it would violate the intended separation of powers. Then to make things even more confusing, two of the three appeals panel members dictated that the Senate and the President had been misinterpreting the Constitution this whole time and that only appointments that arise during a recess may be considered for recess appointment. (Does anyone else see the irony here that the judicial branch, after chastising the executive branch for reinterpreting the rules for the legislative branch has in fact reinterpreted the rules for both the executive and legislative branches?)

Anyhow, this case is almost assured to be heard in the current session of the U.S. Supreme Court. (unless the SCOTUS determines the issue is non-justiciable which we will again leave for another day.) If the ruling stands, President Obama may have actually lost some executive power in this ill-conceived gamble. For now President Obama’s political foes see this as a victory. I wonder if they still will when they regain the executive branch and find it immensely weakened. Until then, recess appointments are in limbo, all the decisions made by the NLRB in the last year are suspect, and once again the three-way recess dodgeball game has taken a surreal turn. Stay tuned.