What to do when the president violates the Constitution?

Can recess appointments be legal when Congress isn’t in session?

Conveniently, while Congress was enjoying its holiday recess, President Obama was hard at work. Defying precedent, he bypassed Congress and used his executive power to make recess appointments, namely three seats on the National Labor Relations Board and Richard Cordray, a former attorney general of Ohio, as the head of the new Consumer Financial Protection Bureau.

Obama’s moves are purely political, but are they constitutional? Republicans say, “No way!” and claim that the Senate was in “pro forma” session, technically not in recess. Now scholars and constitutional experts are hard at work investigating the president’s attempt to circumvent Congress and place his supporters in positions of power.

Recess appointments aren’t unusual. In fact, Teddy Roosevelt famously made a series of recess appointments during his term. They have, however, always been politically unpopular, and almost always subject to legal challenge.

Believe it or not, recess appointments were put in place by the framers of the Constitution. Back in the day, communicating with members of Congress and calling them back into session at the Capitol took weeks. Today’s vastly improved modes of transportation notwithstanding, the law still exists.

The facts are uncontroverted. When Obama made these so-called recess appointments, the Senate was not in full recess. According to the Washington Post, “Article I, Section 5 of the Constitution states that neither house of Congress may adjourn for more than three days without consent of the other house.” Because the House of Representatives did not consent to a Senate recess of more than three days at the end of last year, the Constitution requires the Senate to have some sort of session every few days, a “pro forma” session.

Usually these sessions are uneventful, but alas, this was not the case at the end of 2011. We all recall that on Dec. 23, the president signed the bill that the Senate passed for federal tax relief. Obama was well aware that the Senate was not in full recess.