No fun at this recess

Court flags Obama's appointments as constitutional violations

It might have been an obscure ruling that may not get much attention. But it was an important one, in that it put sandbags around this system of government.


A federal appeals court in Washington ruled Friday that President Obama violated the Constitution by making “recess” appointments to the National Labor Relations Board while the Senate was still technically in session.

The Constitution intended for important executive-branch appointments to be made in conjunction with the Senate. But our founders were pragmatic enough to realize that presidents would have to sometimes fill vacancies when the Senate is in recess. So they provided for temporary recess appointments in the Constitution.

But in recent decades, presidents of both parties have probably abused that power – using recess appointments not so much to fill vacancies quickly, but to avoid the scrutiny of the Senate.

Now, it must be said that the Senate in this case – at the bidding of Republicans – went far out of its way to remain technically in session to prevent President Obama from making recess appointments. They were concerned, rightly in our view, that his appointments to the National Labor Relations Board would be too radically liberal.

The Republicans’ device was a bit disingenuous: They stopped by every few days during a holiday season to keep the Senate in a “pro forma” session.

But, as the federal court held, the president’s device to try to bypass the Senate was a greater sin.

We hope the ruling stands, as it upholds the important principle of checks and balances in our system of government. Recess appointments should be used only to fill vacancies when the Senate is away – not to avoid the constitutionally called-for “advice and consent” of the Senate on presidential appointments.

Again, this may be a quickly forgotten case involving a somewhat esoteric process. But we think it goes to the heart of our system of governance, and that the ruling strengthens it.



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