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Posted January 28, 2013 | comments Leave a comment

In recess kingdom, everyone's a king

By Jeb Inge

Nobody likes having part of their kingdom taken away, especially when it's the U.S. government.

If your government is built to restrain itself with checks and balances, each branch tends to get territorial. And when one thinks another is crowding its turf, we all start hearing the word "unconstitutional" like it's on clearance.

I got my daily dose this morning in an email from the state attorney general's office in which Ken Cuccinelli lauded the D.C. Circuit Court's decision overturning three presidential recess appointments.

"I applaud the court's decision today for recognizing yet another incident of egregious and unconstitutional overreach," Cuccinelli said in the release.

It's not clear what exactly Cuccinelli finds unconstitutional; his press release is vague. But there has long been a debate on the constitutionality of the recess appointment, though the players often switch teams.

Here's how you know who's who: If a Republican is in the White House, Democrats oppose the recess appointment. If a Democrat is in the White House, Republicans oppose it.

Here's how it works: The Senate approves the president's appointments. When they're not in session, the president has the constitutional power to appoint someone without their input. That person then serves until the end of the next session.

In this case, President Obama appoints three members to the three-member National Labor Relations Board during the holiday break known as an intrasession recess.

Traditionally, few appointments are made in this period.

Still, Republicans didn't want to risk Obama making appointments, so a few of them met every couple days and had "meetings" that never lasted more than a few minutes to constitute "being in session." They thought this would prevent recess appointments. Obama appointed them anyway. The court struck down the appointments, saying a few Republicans striking a gavel and leaving translated to the Senate being in session.

The Constitution, while filled with eloquence, isn't known for its specificity. So as Americans debate whether the 27-word Second Amendment gives states the right to arm their militias or give every single person the right to carry an arm cannon, they also debate what constitutes a recess. And as usual, politics is par for the course.

George Washington made the first recess appointment in 1795. It was for the chief justiceship of the United States. Chief Justice Earl Warren and Potter Stewart were both recess appointments. Democrat Bill Clinton made 139 of them. Republican Ronald Reagan made 240; Bush I and Bush II made 77 and 171 respectively.

Democrat Barack Obama has made 32. The three judges ruling unanimously against his appointments were each appointed by Republicans. And the appointments in question were for the National Labor Relations Board. Republicans and Democrats don't find a ton of common ground on labor relations.

If you think this decision happened because it's Obama, you could very well be right. But don't forget the Democrat-controlled Senate filibustering John Bolton's U.N. appointment and then George W. Bush appointing him anyway during a recess appointment. Then Harry Reid blocked recess appointments altogether by not recessing for more than a few days at a time for two years.

The crux of the D.C. Circuit was that the Obama appointments were unconstitutional because they were done in intrasession recess. The controversy is that Obama made the appointments in spite of Senate Republicans going out of their way to avoid the traditional definition of recess.

Yet, George H. W. Bush's administration supported intrasession appointments and Ronald Reagan made 36 of them.

Politics are often led by the amnesiac. Constitutional law is not.

According to the math, the issue isn't whether the recess appointment is constitutional, but to which political party the person making them belongs. Republicans and Democrats each have made substantial amounts of recess appointments. Intrasession and recess alike.

This president less than most, but he's still "Barack Obama: Democrat."

And that's what Ken Cuccinelli thinks about when he writes the word "unconstitutional."

No one likes having part of their kingdom taken away.

Region Editor Jeb Inge can be reached at 540-465-5137 ext. 186 or by email at jinge@nvdaily.com.


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