Article II, Section 2 of the U.S. Constitution requires that certain federal officers be confirmed by the Senate before assuming the position for which the president nominated them.
But, our nation’s founders realized that the Senate could not be in session nonstop. And, for those times when Senators were not around to confirm nominees, the Constitution allows the president to fill such vacancies through what’s called a recess appointment.
Several years ago, during a bruising Senate battle over the nomination of John Bolton to be U.S. ambassador to the United Nations, a young, confident senator rose to argue that, because of Bolton’s inability to be confirmed in the normal course of Senate procedure, he would be considered “damaged goods.”
Bolton’s nomination was being handled as a recess appointment, as the Senate was out of session. And, therefore, according to the U.S. Constitution, it did not require a Senate vote for confirmation.
The freshman senator criticizing the maneuver was Barack Obama.
Seven years later, Obama’s tune has changed – along with his station in life. As president, he has chosen to utilize the power of making recess appointments. Unfortunately, he recently chose to do so at a time when the Senate was actually still in session.
According to the Constitution, neither the House nor the Senate can adjourn for longer than three days without the consent of the other body. On the day President Obama appointed these individuals, neither chamber had passed a resolution of adjournment – and both were continuing to hold pro-forma sessions every third day.
In spite of decades of opinions by U.S. attorneys general that Congress must be in recess for more than three days before a recess appointment can constitutionally be made, President Obama brazenly appointed these individuals to their positions.
As Congress works to reverse the administration’s actions and change the way recess appointments are made, the National Federation of Independent Businesses and the National Right to Work Foundation have filed court motions challenging the Obama administration’s actions. These legal challenges might be complicated and long, tying up the federal courts and the government’s attorneys to defend the actions of the Obama administration.
This was unnecessary. The president himself is a lawyer, and he knows better.
But in his constant search for campaign fodder, the president has done an end-run around the legitimate role of the Congress.
Jean Schmidt is the U.S. Congresswoman serving Ohio’s Second District.