Sometimes, Barack Obama acts like the Constitution does not apply to him and the Congress is an imaginary being. Friday, the United States Court of Appeals brought the president back to Earth and reminded him that that the Constitution’s Appointments Clause and the U.S. Senate are very much part of reality by voiding three of Obama’s recess appointments to the National Labor Relations Board.
The D.C. Circuit ruled that the president could not end-run the confirmation process merely because at the beginning of 2012 the U.S. Senate was meeting every three business days in, what lawyers call, pro forma session. Oh, and during that pro forma session the Senate was also busy passing the payroll tax extension. Some pro forma session.
In its decision, the Court made clear that our president answers to Article II, Section 2, Clause 2 of the Constitution which, in the words of the Court, “provides that the president ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.’”
Now, the language of the Constitution is pretty straight forward. If you are the President and you want to appoint someone to a position of serious responsibility that nominee must be vetted and approved by the Senate. Yes, the Senate can be cantankerous, unruly and even stupid. But, these are not constitutionally recognized rationales for the president to thumb his nose at the Appointments Clause.