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LLoyd Green | Yes, Obama, the Constitution applies to you, too

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.


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