President Disagrees with Court Ruling That He Can’t Decide When Senate is in Recess

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The White House responded to a federal court ruling that the president’s recess appointments to the National Labor Relations Board were unconstitutional. The Press Secretary claims that there had been 280 intrasession recess appointments over the last 150 years, but the court specifically explained why such ‘precedent’ violates the clear intent of the Constitution.

As the American Spectator put it in a lengthy piece worth reading:

It is heartening to read an opinion in which judges actually refer to the text of the Constitution and the intent of the Founders, even quoting the Federalist Papers in their analysis.

The judges note that there were no intrasession “recess” appointments made until 1867 (and maybe not even that one was an intrasession appointment), and a total of only three (including that one) over the ensuing 80 years. From the opinion: “we conclude that the infrequency of intrasession recess appointments during the first 150 years of the Republic suggests an assumed absence of [the] power” to make such appointments.”

Maybe Carney didn’t get the court’s memo.

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, 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. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history.

There are other consequences for the court’s ruling in this developing story. The administration will almost certainly appeal to the Supreme Court.

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