Words fail. In more ways than one.
Disappointing. Troubling. Absurd.
It’s a surprise to hear that The U.S. Court of Appeals declared President Obama’s January 2012 recess appointments unconstitutional.
Chief Judge David Sentelle of the D.C. Circuit said in the ruling that the National Labor Relations Board appointments and Richard Cordray’s appointment to head the Consumer Financial Protection Bureau are invalid. All of the appointments are important and necessary. I will address the issues that lead to Cordray’s appointment to keep the focus of this diary tight.
The main features of Sentelle’s decision are:
• The Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.
• The recess appointments clause of the U.S. Constitution is limited to intersession recesses, not intra-session adjournments.
• An interpretation of ‘the recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases.
The court dismissed concerns about lengthy position vacancies. “If some administrative inefficiency results . . . that does not empower us to change what the Constitution commands.”
Sentelle’s decision doesn't challenge the legality of recess appointments. Article 2 Section 2 of the Constitution provides for them. Sentelle’s decision says the recess appointments were unconstitutional because the Senate was conducting pro forma sessions at the time.
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