Democrats generally tend to operate on the hope that most American voters can’t remember anything that happened longer than about a month ago. Very often they can get away with it, especially on something as esoteric as recess appointments or filibusters. But it is worth noting the history of this particular sordid tale which culminated yesterday, in order to understand why, even in the normal give and take that is to be expected when two parties are battling for power, Obama’s action yesterday truly was an unprecedented abuse of power.
Presidents have long used the recess appointment to fill vacancies caused by a racalcitrant Congress. Clinton used them very frequently when Republicans controlled the chamber. During the GWB administration, after the Republicans retook the Senate in 2002, the Democrats in the Senate – including one particular Democrat Senator named Barack Obama – upped the ante through the widespread use of the filibuster to block all manner of Bush appointments. It is quite rich for Obama to complain about Republican minority obstructionism when he participated in the inception of the program. In fact, in 2004, when the Senate was without question in an intra-session recess, Bush recess appointed William Pryor for a seat on the 11th Circuit Court of appeals. Senate Democrats, led by Ted Kennedy, were so incensed that they unsuccessfully sued to prevent Pryor from being seated. Ultimately their suit was unsuccessful (although it never reached the Supreme Court) because a short recess is still a recess. Thus the Democrats were ultimately impotent to prevent Bush from thwarting their filibusters via recess appointment – until, that is, they took over Congress in 2006. Then the Congressional Democrats – again including Barack Obama – devised a scheme whereby the Senate never went into recess, thus preventing Bush from making further recess appointments. In other words, we are where we are today because of something the Democrats were doing themselves three short years ago.
Against this backdrop, Barack Obama is making the claim that since he has made relatively few recess appointments during his tenure as compared to Bush, it is completely okay for him to violate the plain text of the Constitution and spit on the separation of powers. One point should be made here – the main reason Obama hasn’t had to make many recess appointments is that for the first two years of his three year Presidency his party controlled the House and also had a filibuster-proof rubber stamp majority in the Senate. The relatively small number of recess appointments is hardly evidence of any restraint on his part.
Additionally, the mechanism by which the Senate has been held in pro forma session (during which, as has been pointed out here and elsewhere, they have most assuredly been conducting business including the payroll tax extenders Obama campaigned endlessly on), precludes the possibility that a recess is taking place. The House Republicans – again, not to be credited with ingenuity or even an excess of spine since they learned this trick from the Democrats – are taking advantage of the provision in the Constitution which expressly allows them to prevent a Senate recess without their consent. According to Mouth of Obama Jay Carney, this doesn’t matter because as any member of the Press can see, there are no Senators present in the Chamber right at this minute. Of course, by this rationale, whenever the Senators leave for the weekend, or even for the evening, a President could very well appoint a Constitutional officer without confirmation and have them sit for a year. This farcical interpretation simply cannot be what was intended by the founders when they drafted the Constitution.
Obama’s stunning claim that he has the authority to determine for the Senate when they are or are not in fact in recess is also contradicted by the plain text of Article 1, Section 5, which gives to the Senate the express authority to set the rules of its own proceedings, which would seem to mean at the very least that the White House does not have the authority to dictate Senate procedure on when they are or are not in session.
Congressional Democrats are so buffaloed by Obama, however, that they cannot bring themselves to muster anything other than servile obeisance towards Obama even when he is urinating on their leg. Nancy Pelosi has gone on record stating that she is glad that Obama thinks that Congress doesn’t matter anymore. She thinks it makes Obama a great leader. You know, like Hugo Chavez or Vladimir Putin are great leaders. And make no mistake – if Congress allows this blatant disregard for the Constitution to go forward, they are taking one more huge step towards becoming a purely advisory body – not just for Obama, but for all Presidents of the future.