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:
The next time I hear some lefty mooing about the president’s having let down the side on something or another, it better be about something of substance, like the Keystone XL pipeline, or I’m going to boot said lefty’s hindquarters in the general direction of the federal appeals court of the District Of Columbia, which today laid down the most singular piece of partisan hackery to come out of a court since Antonin Scalia picked the previous president. For precise legal analysis, I’ll leave it to Scott at LG&M to explain. This, children, is what you get when you operate politically under the theory that They’re All The Same. You get 20 or 30 years of primarily Republican judges acting primarily as Republicans, drawn from the legal chop-shops in the conservative movement bubble, and doing their partisan duty like performing seals. (Emphasis mine)
Sentelle has been operating as an out in the open Republican since the 80s where he overturned Oliver North and John Poindexter’s conviction for their role in the Iran-Contra scandal. Sentelle also covered for Reagan by interfering with the investigation that was leading back to powerful Republicans. Just to solidify his credentials as a partisan to end all partisans, Sentelle got rid of the original special prosecutor for the Bill Clinton Whitewater non-scandal who was not going to go on a witch hunt and put Ken Starr on it instead. Ken Starr, of course, used his office for the sole purpose of character assassination on behalf of the GOP. Pierce gives a more detailed history of Sentelle’s career of insulting the concept of a blind justice, I encourage you to read it.
The case will, in all likelihood, be heard by the Supreme Court. It will be interesting to see if Scalia and Thomas, along with the other three conservative justices, will “suddenly” decide that recess appointments are unconstitutional, at least until a Republican is back in the White House…