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Regarding the power of the President, Article 2, Section 2 of the Constitution states:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
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.
The Senate’s power to pass on all appointments of Officers of the United States is explicitly enshrined in the Constitution. The one and only exception to this Congressional power occurs when the Senate is in recess. Despite the fact that, according to the Senate, the Senate is most emphatically not in recess, and despite the fact that they have been meeting every two days even over the holiday, the Obama administration has taken it upon themselves to declare that the Senate is in fact in recess and has made recess appointments to both the NRLB and the Consumer Financial Protection Bureau.
Consider the astonishing timeline here – Obama submitted the names of his proposed appointments two weeks ago – two weeks ago – there has been no filibuster of the appointments; there hasn’t even been a cloture vote scheduled. The Senate hasn’t taken any action one way or another because there’s this holiday that happens in the last two weeks of December that some Americans celebrate, but Reid has kept the Senate in pro forma session, including regular meetings, to preserve the Senate’s prerogative to advise and consent on Obama’s nominees, as it is absolutely and beyond caveat the Senate’s prerogative to do. Thus, despite the fact that the Senate isn’t even dragging its feet on these appointments, and despite the fact that the Senate has been adamant that it is not in recess, Obama has arrogated to himself the power to declare the Senate in recess for them and short circuit the entire Constitutional process for Senate confirmation of Constitutional officers.
This is nothing less than an assault by President Obama on the entire institution of the Senate. And it appears to serve no purpose other than Obama telling the Senate that he will do whatever he darn well pleases.
I can safely say that this is the ballsiest thing I have ever seen a President do that served absolutely no meaningful purpose at all. If Congress – and I am including Congressional Democrats in this – takes this lying down, it will set a breathtaking precedent and instantaneously demolish a significant part of Congress’ relevance. Consider that if Congress allows this to stand, then the next Republican President might just announce Jay Sekulow for his next SCOTUS appointment, and then two weeks later when the Senate breaks for the weekend, declare them in recess and appoint him to the Court. If Democrats consider this to be an undesirable view of the future, I would suggest that they figure out a way to cooperate with Republicans in making Obama pay a very real price for this blatant slap at their constitutional authority.