Even Timothy Noah at the left-of-center New Republic, who favors “a bolder stance by our president to counter Republican obstruction. . . just” doesn’t “see how these appointments [to National Labor Relations Board] can be legal”. He says this in an update to his piece contending that “Cordray’s Recess Appointment Sure Doesn’t Look Constitutional To” Him:
As someone who strongly supported a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau, I’m confused as to why President Obama chose to act today. Had he appointed Cordray yesterday, during a brief period when the Senate was technically in recess, the action would have been supported by precedent. Apparently, though, that appointment would have lasted only through 2012. By appointing Cordray today, Obama can keep him at CFPB through 2013.
The trouble is that the Senate isn’t in recess. For complicated reasons the Republicans have the ability to prevent the Senate from going into recess, and they have done so in order to maximize the difficulty of Obama making recess appointments. The White House maintains that keeping the Senate in pro forma session is a stupid gimmick, which is certainly true. It further maintains that because it is a stupid gimmick, that gives the president the right to act as though the Senate were in recess. That’s the part I have trouble following.
Via RealClearPolitics. On this issue, Noah and Ace are on the same page, with the latter mocking the president’s contention that “The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks.” (Emphasis added.) Quoting the relevant constitutional provision (Article II, Section II), Ace quips, “Funny, I don’t see anything about ‘effectively’ being in recess.”
Noah also takes on other left-of-center bloggers as well as political scientists defending the recess appointments contending that the court cases and CRS reports they cite don’t justify the conclusions they’ve reached. Read the whole thing.