For over a century, presidents have been making recess appointments to get around opposition party filibusters of important positions within their administration. There has been squawking about this from both sides of the aisle and even the odd legal challenge but no one seriously tried to put a stop to it. Until Judge David Sentelle, that is.
On Friday, the U.S. Court of Appeals for D.C. took the unprecedented action of overturning 3 recess appointments to the National Labor Relations Board. This would invalidate every decision made by the board since those appointments were made in January of 2012. The decision was based on a reading of the Constitution that relied on splitting hairs so finely, it’s a wonder that Sentelle did not cleave through the laws of time and space. Via Slate:
What we’re looking at here is this clause from Article II of the Constitution:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
As Sentelle framed it, “the Recess” cannot ever mean anything like “a recess.” “This is not an insignificant distinction,” he writes. “In the end it makes all the difference.” The Framers were not talking about “a generic break in the proceedings,” Sentelle continues, “Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess.’ ” The upshot is that if the opposing party minority says the Senate is in session, then it does not matter where the flock has fled, or even for how long. The Senate Republicans did this by using their majority power in the House. Minority Leader Mitch McConnell, essentially, gets to decide when the Senate is open or shut, with whatever fiction he wants. The president is at his mercy.
The power grab is as blatant as it is disturbing. The GOP has a history of blocking as many appointments as possible. The reason is twofold. First, by leaving those positions unfilled as long as possible, particularly agency heads (the ATF immediately comes to mind), the GOP can hobble or even cripple (again, the ATF comes to mind) the agency. This not only benefits the industries that would otherwise be effectively regulated (coincidentally, like those stalwart GOP supporters in the gun industry), but, in turn, becomes the GOP’s “proof” that government is inefficient and useless. This is similar to how the GOP has undermined public education; Take away the funding then complain that they can’t get the job done. Cause the problem and then profit from said problem. Nice work if you can get it.
The second reason for blocking appointments, especially to the judiciary, is that it leaves those positions open for a Republican president to fill with hard-core ideologues. This is a long-term cancer that has been eating our country for over thirty years. For instance, without the radical ideologues Scalia and Thomas on the Supreme Court, Bush would not have been handed the presidency after losing the election and Citizens United would not have allowed corporations and the rich to try and buy elections (sure, it didn’t work out for them in 2012 but if you think they won’t refine the process until they can decide the outcome at their leisure, you’re insane). Charles Pierce at Esquire puts it best: