When are Recess Appointments Not Recess Appointments?

Answer:  When the Senate is not in Recess.

Looking as if he has aged 30 years in his 3 years in office, President Barack Hussein Obama yesterday decided to show Congress and the rest of the country Who’s The Boss:

President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau and three new members to the National Labor Relations Board — moves Republican lawmakers said amounted to an unconstitutional power grab.

The president acted just a day after the Senate held a session — breaking with at least three different precedents that said the Senate must be in recess for at least three days for the president to exercise his appointment power. Mr. Obama himself was part of two of those precedents, both during his time in the Senate and again in 2010 when one of his administration’s top constitutional lawyers made the argument for the three-day waiting period to the Supreme Court.

Mr. Obama tapped former Ohio Attorney General Richard Cordray to head the CFPB, and named three others to the labor board — all of which had been stymied by congressional Republicans who said Mr. Obama is accruing too much power to himself through those two agencies.

In strikingly sharp language, Republicans said the Senate considers itself still in session for the express purpose of blocking recess appointments, and the move threatened to become a declaration of war against Congress.

“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.

GOP House Speaker John A. Boehner called the move “an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department.”

“The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution,” the Ohio Republican said in a statement.

The question is:  Will the Republicans in Congress have the intestinal fortitude to challenge Dear Leader?  Well, if they don’t, the U.S. Chamber of Commerce might:

The recess appointments President Obama announced Wednesday are “almost certain” to be challenged in court, according to a top official with the nation’s largest business lobby.

The U.S. Chamber of Commerce has not decided whether it will file a legal challenge to the appointments, according to David Hirschmann, who heads the Chamber’s Center for Capital Markets Competitiveness. But he said he’s confident that Obama’s precedent-shattering move will land the administration in court.

“We’ve made no decisions ourselves,” Hirschmann told The Hill. “What we do know is … it’s almost certain ultimately a court will decide if what the president did is legal or not.”

Regarding the three Imperial Appointments to the Labor Board, Obama’s buddies in the Labor Unions are overjoyed.  That’s always a bad sign.

Obama, in a prepared statement, said the nation deserves “to have qualified public servants fighting for them every day – whether it is to enforce new consumer protections or uphold the rights of working Americans.”

Labor unions, a bedrock of Democratic political support in this election year, had been pushing the White House to fill the seats.

“Some Republican members of the Senate have made a determined effort to cripple the NLRB and other government agencies by refusing to act on President Obama’s nominees, no matter how qualified,” said James Callahan, president of the International Union of Operating Engineers. “Leaving the NLRB without a quorum would penalize both labor and employers.”

Wyoming Sen. Mike Enzi, top Republican on the Senate Health, Education, Labor and Pensions Committee, called the White House move a sign of “its contempt for America’s small businesses.”

“The president has ignored the Senate’s confirmation and vetting process, ensuring that our struggling economy will soon be faced with two additional bureaucrats who will shackle America’s employers with new onerous regulations,” Enzi said.

Obama’s announcement of the new NLRB members came without fanfare in an afternoon press release. By contrast, Obama trumpeted his appointment of Cordray earlier in the day at a speech in Ohio, where he chastised Congress for standing in the way of consumer protection.

Block is deputy secretary for congressional affairs at the Labor Department. Griffin is currently the general counsel for the International Union of Operating Engineers. Flynn serves as chief counsel to the NLRB’s other Republican member Brian Hayes.

Flynn’s nomination has been pending for a year, but Block and Griffin were just nominated in December.

Per the Speaker of the House John Boehner’s website, it violates the Obama Administration’s own policy:

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days. Here’s the exchange with Chief Justice John Roberts:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

As has been noted time and time again during Obama’s Imperial Presidency, all of Obama’s promises (and polices) come with expiration dates.

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