An ex-professor of constitutional law, President Obama understands an unsettling truth about executive overreach: It’s unconstitutional only if somebody squawks. Sure, the Constitution says the president can’t make an appointment without the Senate’s consent. But if he does, and nobody objects, what’s stopping him?
Now Republicans are objecting to Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau. They’re demonstrating another truth: Everyone’s a strict constructionist when he’s not in power. Still, they’re right. This so-called recess appointment is unconstitutional, because the Senate wasn’t in recess when Obama made it. It was holding pro forma sessions, and, contra the Office of Legal Counsel’s memo, those do count.
Yet Obama has betrayed the original understanding of the Constitution in another sense — as did Pres. George W. Bush before him. Prof. Michael Rappaport of the University of San Diego has argued that the Constitution, as originally conceived, empowered the president to make recess appointments only to those vacancies that arose when the Senate was in recess. This vacancy, however, has existed since Obama signed the Dodd-Frank bill into law in July 2010.
If Republicans want to put teeth back into the Constitution, they should demand a return to the original understanding of the recess-appointment power in full.
First, consider the text. In Article II, Section 2, it says 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.” Under current practice, the president treats the word “happen” as if it means “exist,” — that is, he makes appointments to offices that are vacant during the recess, whether or not those vacancies occurred before the recess.
This interpretation flouts the original understanding. Try this example: On April 2, 1792, Congress passed a law establishing the national mint, but Pres. George Washington failed to nominate a candidate for chief coiner before the Senate adjourned on May 8. Washington then asked his attorney general, Edmund Randolph, whether he could make a recess appointment. On July 7, Randolph replied in a written opinion that Washington could not make an appointment because “it is now the same . . . vacancy . . . [that] existed on the 2nd of April 1792.” The vacancy did not “happen” while the Senate was in recess; “it commenced . . . on that day” of enactment.
The president’s defenders point to an opinion written by Attorney General William Wirt in 1823, which argued the opposite. Taking a loose interpretation of the Constitution — as impatient politicians are wont to do — he argued, “The substantial purpose of the constitution was to keep these offices filled; and the powers adequate to this purpose were intended to be conveyed.” Therefore, the president could make recess appointments to offices that had become vacant before the recess. Nonetheless, Wirt admitted that the strict-constructionist view was more “accordant with the letter of the constitution.”