The Power of a Written Constitution Lies in its Words

“The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.”- Canning v. NLRB (D.C. Circuit Court of Appeals, Jan. 25, 2013).

In his second inaugural address, President Obama claimed that although there are certain things that are “constants in our character . . . when times change, so must we.”  The Constitution has been the constant in the character of this nation for over two hundred years, and despite his best efforts, the D.C. Circuit Court of Appeals decision last month refused to allow President Obama to change or ignore the document’s plain words.

On January 4, 2012, the President proclaimed the Senate “in recess” and then attempted to use his recess appointment power to install three members to the National Labor Relations Board.  He also put Richard Cordray at the head of the unconstitutional Consumer Financial Protection Bureau (CFPB), but that’s a story for another day.  Late last month, the court vacated an NLRB decision on the grounds that the president’s appointments were not made during a Senate recess and were thus unconstitutional.  Since those three appointments were void, the NLRB lacked the necessary quorum to adjudicate cases.

More importantly, the court reaffirmed the fundamental separation of powers between the two elected branches when it comes to presidential appointments. There were two basic questions. First, was the Senate in an intersession or intrasession recess?  Meaning, was the body really and truly adjourned (thus allowing the President to recess appoint) or simply taking a short break but still in session. The court ruled that it must be the latter. To decide otherwise would allow the President to avoid the Senate’s proper review of his nominees “any time the Senate so much as broke for lunch.” The administration was never able to “state how short a break is too short” in order to allow for an intrasession recess appointment.

Of course the plain language and purpose of the Recess Appointment Clause points toward a reading that requires the body to actually be in recess. The court reflected the original intent behind the clause, writing:

To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” It would have made little sense to extend this “auxiliary” method to any intrasession break . . . .  The president could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.

The second issue was whether the president can determine when the Senate is and is not in session.  The court had no problem rejecting the Obama administration’s claim that the president has such power over Congress’s Upper Chamber. Giving the president this power simply “will not do. Allowing the President to decide the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”

“Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members … its decision must be vacated.”  This decision hopefully presages a similar result in an ongoing judicial review of Richard Cordray’s installation at the CFPB.