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George F. Will: Humpty Dumpty over recess

Published: October 11, 2012
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“The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

— The Constitution, Article II, Section 2

“'When I use a word,' Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean — neither more nor less.'”

— Lewis Carroll, “Through the Looking Glass”

When on Jan. 20, 2009, Barack Obama swore to defend the Constitution, he did not mean all of it. He evidently believes that the provision quoted above merely expresses the Framers' now anachronistic anxieties about abuses of executive power. (Jefferson's lengthy catalog of George III's abuses is called the Declaration of Independence.) So on Jan. 4, 2012, Obama simply ignored the Recess Clause.

He was in his “We can't wait!” — for Congress and legality — mode, as he was when he unilaterally rewrote laws pertaining to welfare, immigration and education. On Jan. 4, he used recess appointments to fill three seats on the National Labor Relations Board, even though the Senate said it was not in recess. Obama's cheeky Humpty Dumpty rejoinder was: I decide what “recess” means. Now a court must decide whether the Constitution means what it says.

In 2011, the Noel Canning company, which bottles soft drinks in Yakima, Wash., was negotiating a labor contract with Teamsters Local 760. The union says it and the company reached a verbal agreement. The company disagrees. An administrative law judge sided with the union. On Feb. 8, 2012, after Obama's disputed appointments, the NLRB upheld that decision and asked a federal court to enforce it. Noel Canning is asking the court to declare that the NLRB's intervention in the dispute was unlawful because the board lacked a quorum until Obama made the recess appointments, which were invalid because the Senate was not in recess.

In support of the company, Senate Republican Leader Mitch McConnell and 41 members of his caucus have filed a brief arguing that the recess appointments “eviscerated” two of the Senate's constitutional powers — to “determine the rules of its proceedings” and to reject presidential appointments.

The Recess Clause says the president's power extends only to vacancies that “happen” while the Senate is in recess. This does not describe the NLRB vacancies — or many vacancies filled by many presidents' recess appointments since George Washington made the first ones in 1789. It does, however, describe the problem the Framers addressed: Until the Civil War, travel was slow and arduous, so Senate sessions usually lasted only three to six months. The Framers wrote the Recess Clause to give presidents very limited authority to fill important posts, while preserving the Senate's absolute veto over presidential nominations.

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