The U.S. Senate ought not be excluded from its constitutional role in the appointment confirmation process.
When he was president, George W. Bush, irritated by a slow Senate confirmation process, drew the wrath of the majority Democrats by making recess appointments when that body was adjourned.
There was little the Senate could do to block recess appointments because the U.S. Constitution specifically provides the president that power. But if the Senate never recessed, could the president still make recess appointments?
Senate Democrats concluded that presidents, in this case Bush, could not. So whenever the body adjourned, like for Christmas vacation or some other reason, they kept the body technically in operation by arranging for a member to stay behind and gavel it in and out of pro forma sessions.
This process, designed only to prevent recess appointments and not to conduct real business, worked.
President Bush recognized the Senate's prerogative of deciding when it was and when it was not in session. He made no more recess appointments because the Senate declared no more recesses.
President Obama does not recognize the Senate's right to decide when it is in session, and that led last week to important oral arguments before a federal appeals court about the extent of the president's appointment power.
A Washington bottling company is challenging decisions by the National Labor Relations Board because they were made by three of Obama's recess appointees. The company is arguing that because the nominees were unlawfully appointed their decisions should have no legal force.
Under our constitutional system, power is divided among three separate and co-equal branches of government — the executive, the legislative and the judicial.
In the case of appointments, presidents nominate important executive and judicial officials, but they must be confirmed by the Senate to take office. Presidents may make recess appointments, but those appointees may serve only two years.
So the question before the court is who gets to decide when the Senate is in session — the Senate or the president?
There is no question these pro forma session are not held for the sake of doing real business. But there is no constitutional requirement that the Senate must conduct business when it is in session. What the Senate does ought to be strictly up to the Senate, certainly not the executive, to decide. Further, giving the executive the authority to either recognize or not recognize Senate decisions would turn the concept of separation of powers upside down.
What's at dispute here is the Senate exercising its prerogative to drag its feet on presidential appointees. That would appear to be a reason for the two branches of government to work together more cooperatively on appointments, not vitiate the Senate's constitutional advise and consent role.
It's important under our system that each branch of government jealously guard its constitutional prerogatives. Indeed, it is fundamental to the concept of checks and balances, which forms the basis of constitutional protections of personal liberty, that it do so.
If the court lets the executive branch get away with overriding the Senate's proper role in the nomination process, it will be doing considerable harm to this nation's founding document.