The Record: Unconstitutional
THE PRESIDENT nominates, and when the Senate concurs, the appointment is made. That's how thousands of federal positions have been filled since the founding of the republic. Understanding that the Senate would not be in session continuously, the Constitution's framers allowed presidents to make so-called recess appointments when the Senate is not meeting. That bypasses the need for Senate confirmation.
But there are limits to that type of presidential power, and the U.S. Supreme Court ruled last week that President Obama exceeded his authority when he made three appointments to the National Labor Relations Board in 2012 when the Senate was not in session for a mere three days. With no precedent involved, the court said recess appointments should not be allowed unless the Senate is not meeting for at least 10 days.
All nine justices embraced the core of the court's opinion, but Justice Antonin Scalia in a separate opinion said the court should have taken additional steps to limit presidential appointment power. His opinion was joined by three other members of the court's conservative bloc.
We agree that making a recess appointment when the Senate is out of town for three days is an abuse of constitutional authority. But at the same time, we can't overlook the telling reason why this issue never came before the court until now.
For years, a president's appointment power was respected by both parties. Unless an individual was of "unfit character," in the words of Alexander Hamilton in The Federalist Papers, No. 76, he or she was generally confirmed.
That's no longer the case. During the presidency of George W. Bush, some Democrats in the Senate would simply refuse to consider nominees of the president or use parliamentary procedures to prevent a vote purely for political reasons. Now that Obama is in the White House, Republicans in the Senate have done the same. That is why both Bush and Obama have found it convenient to make appointments when the Senate was out of town.
Court guidance on how recess appointments are to be handled is instructive, and a recent change in Senate filibuster rules makes it harder to simply block nominations. Still, the Senate has to do its job. Recess appointments wouldn't be an issue if the Senate simply gave presidential nominees an up-or-down vote.