To borrow a football metaphor, a federal appeals court threw the flag last week against the president of the United States for unsportsmanlike conduct.
Specifically, a three-judge panel in the Washington, D.C., circuit ruled that President Barack Obama's "recess" appointments of three members of the National Labor Relations Board were invalid because they never received the constitutionally required "consent" of the U.S. Senate.
Administration-backed lawyers had argued unsuccessfully that it's a time-honored, common practice for presidents to sneak appointees into office while the Senate is in extended adjournment and technically not available to give or withhold consent.
Ronald Reagan did it 240 times. George W. Bush and his father, George H.W. Bush, combined, did it 248 times. Bill Clinton did it 139 times.
The referees on the court didn't buy the "...but everybody does it!" argument.
Their opinion noted that the provision for such appointments in the Constitution refers to "the recess," of the Senate (emphasis added), meaning the break between formal sessions of the chamber and not any old vacation period, long weekend or lunch break.
"We will not do violence to the Constitution by ignoring the framers' choice of words," it sniffed, if a court opinion can be said to sniff.
Fair enough and high time.
The Congressional Research Service has written that the recess-appointment power "was meant to allow the president to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session," which, in the early years of our Republic, was more than half the time.
So it was a form of cheating for the president — any president, not just this president, who's made fewer than three dozen recess appointments — simply to wait until the Senate's back was turned to put people into important governmental jobs.
But in fairness, presidents have often been provoked into bending the rules by obstructionist senators from the opposing party using their power to block nominations as political leverage or just to be jerks.
Why does the Constitution give the Senate "advice and consent" authority over major appointments?
As "an excellent check upon a spirit of favoritism in the president," wrote Alexander Hamilton in the Federalist Papers. And "to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity."
Nothing about yanking the president's chain, expressing pique or giving vent to the generally impotent rage of those in the party out of power.
Yet in the case at hand, the Republicans in the Senate were filibustering Obama's nominations to the National Labor Relations Board because, as members of the anti-union party, they don't like what the National Labor Relations Board does during Democratic administrations.
Not because the nominees were unfit or the intended beneficiaries of favor or nepotism. But because the GOP senators didn't like the job for which they were nominated.
They put a similar kibosh for similar reasons on Obama's choice to run the Consumer Financial Protection Bureau. And, to try to protect their ill-claimed prerogative, they conducted sham sessions of the Senate, gaveling to order and adjourning within seconds every day to avoid any claim that they were in recess.
Petty. Small. Disgraceful.
In throwing the flag on Obama, the court was like the referee who calls a penalty on the last player to retaliate in an on-field shoving match.
And its ruling failed to address the plausible "... but he started it!" argument, an argument that says the more significant violence to the intent of the framers has been the Senate's flagrant abuse of advice and consent, which, I might add, has been greatly facilitated by the filibuster rules that Democrats declined to reform last week.
Upon further review, however, a fair assessment of the current fracas would note that Democrats were avid proponents of sham sessions of the Senate back when they were trying to thwart the recess appointments of George W. Bush.
We can only hope that the U.S. Supreme Court gets this case on appeal, and it figures out a way to say to our political parties what you just know Alexander Hamilton would say if he came back to life, once he stopped throwing up:
Knock it off, you two!
Read the opinion and comment on this column at chicagotribune.com/zorn.
