President Obama’s recent slate of controversial appointments continues to land him in hot water with constitutionalists.

To recap: Invoking his power to appoint officials while the Senate is in recess, the president recently unilaterally filled three seats on the National Labor Relations Board, as well as — more problematically — Richard Cordray to head the Consumer Financial Protection Bureau, a new panel ostensibly designed to shield consumers from Wall Street excesses. The Senate had hedged on Cordray’s appointment, leaving the slot empty.

Recess appointments are nothing new. It has long been understood that, for the sake of order, major bureaucratic positions should not go unfilled simply because the Senate is unavailable to confirm the appointees — historically, presidents have appointed people to these positions with the understanding that the Senate would examine them when it reconvenes.

But the Senate was not officially in recess, by any traditional metric. The president appointed these positions not when the Senate had declared itself adjourned, but simply when it was holding pro forma sessions — meeting every third day. Never before has this been considered recess — it is an unprecedented and audaciously self-serving way for the Obama administration to try to flout traditional advise-and-consent rules.

Lawsuits have already popped up over the issue, and several constitutional experts have questioned the appointments. The Justice Department felt compelled to formally defend their constitutionality.

Ed Meese, who served as attorney general under President Ronald Reagan, suggested that Congress should make its concerns explicit with a Sense of the House resolution:

“…[T]he House of Representatives should pass a sense of the House resolution condemning the president for this, so that the people themselves will understand that he is doing an unconstitutional act.

…

[It] is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role…[i]t is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

Sense of the House resolutions have no binding legal authority — they are simply official declarations passing collective judgment on a given issue. Hundreds may be passed in any given year, most about matters on which both parties are in full agreement: a typical resolution might pay tribute to a charitable organization, or express goodwill toward oppressed peoples fighting for liberal-democratic rights.

If a bill condemning President Obama’s appointments were to pass, it would be notable for wading into controversial territory.

The case against the appointments seems clear. Meese continues, via CNS News:

Appearing on “Online With Terry Jeffrey,” Meese explained why he believed Obama’s appointments were not “recess” appointments and violated the Constitution—pointing specifically to Article 1, Section 5, Clause 4 which says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”

“Now, under this express language of the Constitution, on January 4, when the president named Mr. Corday and named the three members to the National Labor Relations Board was Congress in session or not in session?” CNSNews.com asked Meese.

“I believe that they were in session, yes,” Meese said. “In other words, I believe that they were not in recess. And the fact is they were holding sessions on a regular basis every three days.”

“Now, the interesting thing is that the Senate itself has indicated that they were in session by holding the pro-forma session,” said Meese. “During such a session at the end of 2011, during exactly the same kind of a session, they actually passed a bill, the payroll tax holiday. So there is no difference between that session and the session that was held in January, particularly on the fourth of January, during the time in which the president usurped the constitutional requirements and made these appointments.”

Congress itself engages in unconstitutional behavior on a frequent basis. But this is not the president’s first time twisting Constitutional language to fit his own needs — his administration’s reading of the commerce clause to justify Obamacare would render its language meaningless, for instance — and the sheer audacity of this act would seem to warrant some kind of formal rebuke.

These appointments may not rank among the administration’s most egregious violations of the country’s Constitutional order — but it surely ranks among the most shameless. Meese’s arguments deserve a close look from House Republicans.

-Alex Knepper

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