Krauthammer made this point yesterday:
The president is saying: “I won’t let Congress stop me.” But it’s in the Constitution that you have to have the Senate’s approval… He [the president] can only make a recess appointment if the Senate is in recess. It is not in recess.
In fact, his own Justice Department argued last year before the Supreme Court that the Senate has to be out of session for three days. It has not been. And that appeal was based on a ruling of the Clinton Justice Department–three days.
You can appoint anybody you want in a recess appointment. You can appoint anybody who has already been rejected by the Senate. You can appoint anybody you want as a way to make a purely cynical political point in election year in Ohio, as Obama is doing. But you can’t do it as a recess appointment if the Senate is not in recess.
The White House called these “recess appointments,” even though Congress technically wasn’t in recess. In doing so, the president is playing with fire. He risks an election-year legal challenge that could hamstring the consumer bureau and several other financial regulators whose pending confirmations will probably now stall. The president’s authority -- and that of future executives -- to fill administration posts without Senate approval may be limited by the courts. We think Obama risks too much to make what is largely a political point -- that he, more than the Republican Party stands by American workers and consumers.
John Yoo (H/T Pundette):
This, in my view, is not up to the president, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers. The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.And one more: Allahpundit:
Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).
Even if there’s a constitutional argument to be made in Obama’s defense, that argument isn’t available to Democrats. They used pro forma sessions, successfully, to block Bush; the only way to square that circle is to argue that the GOP is being more obstructionist than they were, to the point where other branches are now free to ignore separation-of-powers provisions in the Constitution in order to break the impasse.
Obama is off the rails here. Off the track. Jumped the shark. FUBAR.