Has President Obama Violated the Constitution?

While you were following the Iowa caucus and preparing for the New Hampshire primary, you may have missed a big news story.  President Obama has made four recess appointments.  One appointment is to the new Consumer Financial Protection Bureau and three are to the Labor Relations Board.  There are plenty of stories that argue whether these individuals are or are not qualified.  Their qualifications aren’t the story.   The President made these “recess appointments” while the Senate was actually in session, making their appointment unconstitutional.

U.S. A Today has an op-ed piece defending the President’s action.   U. S. A. Today believes that the Republicans are just being obstructionists.  They argues that the Senate was “technically” in secession, but they weren’t really in session.  So while the President may have technically violated the Constitution, it doesn’t really matter.

I think this argument stretches credibility.  Presidents are allowed to make recess appointments. Many have done it, some have done it a lot.  However a President can’t make a recess appointment if the Senate is in session.  The Senate is charged with confirming Presidential appointments under the Constitution as a check and balance on the Executive branch.

The editors at U. S. A. Today are arguing that the Senate was only “a little” in session, so it’s ok for the President to make a recess appointment.  This is like being “a little” pregnant.  Either the Senate is or isn’t in session.  In this case, the Senate was in a “pro forma” session.  That means a member comes to the Senate floor, gavels in a session, waits a minute or two (or longer), then gavels the session closed.  Its a parliamentary trick that both Republicans and Democrats have used before for a number of different reasons.  However, according to the rules of the Senate, this is a “session” and affects the Senate just as any other session might.  The President has violated the U. S. Constitution.  U. S. A. Today defends this action:

But from a common-sense standpoint, you’d think there is already enough hypocrisy in Washington without pretending that an empty Senate chamber where no business is conducted is really “in session.”

Congress created the consumer protection bureau in 2010. The agency opened its doors in July. Obviously, it should have a leader. Sometimes, the government simply has to get going and do its job, no matter how badly obstructionists prefer gridlock.

While I agree that there is enough hypocrisy in Washington already, I don’t think this qualifies as such.  The amount of business that is or isn’t being done doesn’t determine whether the Senate is in session or not.  And while the editors of U. S. A. Today may agree with the President because they feel like the government is doing its job, they are wrong.  The President swore to protect and defend the Constitution.  That’s his job.  Breaking it whenever it suits him and the editors of U.S.A. Today isn’t.