Gamble of the Presidency

That’s the gist of the ruling Friday addressing how often kids — well, not exactly kids; senators, to be exact — have recess.

The appeals court striking down President Obama’s three appointees to the National Labor Relations Board confined the Senate recess to twice a year — their summer and winter breaks. Everything else may as well be serious learning.

“An interpretation of ‘the Recess’ that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement,” wrote Chief Judge David Sentelle for the court.

That would be “giving the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

Obama’s spokesman said that this was a narrowly confined ruling, suggesting that the president would not appeal.

Big mistake. More than any other legal setback dealt Obama, he has a responsibility of the generations to fight this. The weight of all presidents going back to James Monroe, one of the founding fathers, demands that he establish as law the right for presidents to make recess appointments.

Don’t get me wrong. Every chip at the NLRB is an additional victory for freedom and normalcy. Like so many liberal ideas, this board started off as a good concept. But it has since grown into a force sapping U.S. businesses, progress, modernity and innovation.

Parents in New York City are feeling their cruelty for the past two weeks as the bus drivers’ union strikes for power, setting off a morning scramble for rides, car services and carpools. Union influence has been severely curtailed over the past year, at great expense, in Wisconsin, Indiana, Michigan and Ohio.

The three members of the board needed for a decision-making quorum were rejected by the Senate for their ardent liberalism, a throwback to the 1930s. The idea that all their rulings over the past year may be thrown out retroactively is thrilling.

Even more exciting is the possibility that a different recess appointment, which was not the subject of this case, could be retroactively declared null.

One of Obama’s most significant acts since taking office has been the establishment of the misnamed Consumer Financial Protection Bureau, governing every financial decision made by banks, Wall Street brokers, local grocers and consumers. The sticking point was that it cannot take effect until it has a chairman.

Obama’s first choice to head the agency, the far-leftist Harvard professor Elizabeth Warren, was rejected by the Senate. He chose to replace her nomination with Richard Cordray, in a recess appointment. If that is declared unconstitutional, much of the president’s domestic policy can go along with it.

I support limiting recess appointments to whenever Congress is not in session. But the court’s opinion went much further than that. Sentelle restricted appointments to twice a year — only for vacancies that arise during that break and which can only be filled during that particular recess.

That flies in the face of precedent going back nearly 200 years. Recess appointments have been made by nearly every single commander in chief to bypass an intransigent Congress, fill a position that cannot wait for a hearing, or just allow a president a quiet chuckle at scoring a political victory. And the best part is that they are constitutional.

In 1823 a navy agent by the name of Gen. Robert Swartwout resigned during a Senate session. For whatever reason, President James Monroe, a participant at the convention of 1787 which drafted the Constitution, chose to wait until the Senate adjourned before appointing a replacement.

Monroe’s attorney general, William Wirt, submitted an opinion that it was legal — even if the position had opened during a Senate session.

Monroe was part of the pro-Jefferson party at the convention, voting against ratification since it did not provide enough protection for the individual against a powerful federal government. His agreement to this recess appointment has been used by presidents ever since to allow them some leeway when political sideshows threaten to obstruct the business of government.

America has known strife before. We live today, believe it or not, in an era of unprecedented civility among our elected officials. Have you read about any duels recently? Canings in the House? Even mildly-profane language in the hallowed halls of the Capitol makes headlines.

During the early 1800s, a slew of rebellions threatened to undermine the world’s first democracy. By mid-century, the fight over slavery triggered riots and much bloodshed both in the streets of Topeka and the halls of Congress. The immigration battles in the early 1900s, the McCarthy era in the 1950s, and the civil rights and Vietnam struggle in the 1960s brought the United States to a standstill.

We forget this, but it is important to remember that it was the recess appointment that allowed a modicum of stability to reign, at least in Washington. Friday’s court decision threatens all that.

The 2nd circuit can only be overruled by the Supreme Court, since they are the court that hears most appeals from legal disputes arising in Washington.

Essentially, Obama took a gamble with the courts and lost. Big time. It is now up to him to fight back. And win.

This article appeared in print on page D1 of the January 30th, 2013 edition of Hamodia.