The Hypocritical Liberal Defense of Obama's Recess Appointments

In January 2006, The New York Times published an unsigned editorial attacking “the grandiose vision of executive power” displayed by President George W. Bush, who was then battling Senate Democrats over the fate of several controversial nominees to federal office. “Seizing the opportunity presented by the Congressional holiday break, Mr. Bush announced 17 recess appointments—a constitutional gimmick,” announced the Times.

In response to Bush’s use of the recess appointment power to bypass the Senate confirmation process, Senate Democrats in late 2007 adopted a new defensive posture. A member would gavel the Senate into pro forma session every few days in order to prevent it from going into recess over the holidays, thereby denying the president the legal ability to make any more recess appointments. It did the trick. As Times reporter Charlie Savage put it, “Senate Democrats repeated the move during breaks for the rest of Mr. Bush’s presidency, and Mr. Bush did not try to make any further recess appointments.”

Like George W. Bush before him, President Barack Obama has also invoked the recess appointment power under dubious circumstances. But unlike Bush, Obama decided to bulldoze right over the inconvenient fact that the Senate was conducting a pro forma session at the time. On January 4, 2012, Obama made four purported recess appointments when the Senate was not actually in recess, including the addition of three members to the National Labor Relations Board.

That unprecedented unilateral action triggered last Friday’s sharp ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which found Obama’s three NLRB appointments to be in violation of the Constitution. Obama’s tactics, said the D.C. Circuit, “would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

So how did the editorial board of The New York Times respond to this decision? Given the paper’s previous stance in opposition to Bush’s recess appointments and “the grandiose vision of executive power” they embodied, you might expect the Gray Lady to cheer a judicial rebuke of Obama’s even greater abuse of that same executive power. But you would be wrong.

In an unsigned editorial titled “A Court Upholds Republican Chicanery,” the Times blasted the D.C. Circuit for placing limits on Obama’s authority. “With no sign that Republicans are willing to let up on their machinations, Mr. Obama was entirely justified in using his executive power to keep federal agencies operating,” the editorial declared.

So much for taking a principled stand against executive overreach.

Nor were the editors of the Times the only prominent liberals to change their tune on the desirability of presidential power grabs. At The New Yorker, legal affairs writer Jeffrey Toobin denounced the D.C. Circuit’s ruling as “right-wing judicial activism” that serves only to provide “a huge gift to the contemporary Republican Party—especially to Republican senators.”

Once upon a time, Toobin expressed more concern about the separation of powers. In his 2007 book The Nine: Inside the Secret World of the Supreme Court, Toobin painted a negative portrait of the “new and expansive view of executive power” championed by the George W. Bush administration and its allies in the conservative legal movement. Now that Obama has the reins, Toobin is apparently less troubled by such matters.

But more to the point, Toobin should know better than to try to pass off the D.C. Circuit’s ruling as a “right-wing” act. Toobin is a prominent legal journalist so he is surely aware of the legal challenge launched against President Bush’s 2003 recess appointment of William H. Pryor to the 11th Circuit Court of Appeals. When that case reached the federal appellate level, Democratic Sen. Ted Kennedy of Massachusetts filed a friend of the court brief urging the 11th Circuit to adopt almost the exact same limits on the president’s recess appointment powers embraced by the D.C. Circuit last Friday. Among the attorneys representing Kennedy in his brief was Harvard law professor Laurence Tribe, a leading liberal academic and sometime mentor to Obama himself.

“The President may not make recess appointments during intra-session Senate breaks,” argued Kennedy’s brief. The D.C. Circuit reached the same conclusion in the NLRB case. Because Obama’s NLRB appointments were made during an intra-session break, rather than during “the recess” that falls between Senate sessions, those appointments are invalid.

If that ruling by the D.C. Circuit was an act of right-wing judicial activism then Sen. Kennedy and Professor Tribe now qualify as leading champions of right-wing judicial activism—a preposterous notion.

In the midst of all this liberal hypocrisy, it’s refreshing to find that President Obama has managed to stick to his guns on this issue. In 2005 then-Sen. Obama joined his Democratic colleagues in opposing President Bush’s recess appointment of John Bolton as U.N. ambassador. (Bolton’s appointment by Bush would also be unconstitutional under the D.C. Circuit’s “right-wing” decision.) Yet Obama never objected to Bush’s authority to wield that particular power. “The president is entitled to take that action,” Obama said, “but I don’t think it will serve American foreign policy well.”

So Obama is at least being consistent. The same cannot be said for many of his liberal defenders.

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  • sarcasmic||

    Coming up: Liberals are hypocrites. In other news, water is wet. Story at eleven.

  • WTF||

    NYT tl;dr - "It's okay when our side does it!"

  • Proprietist||

    It would be really amusing for someone to start a blog where every story is about members of both teams being total hacks, and every headline is a blue or red colored version of the same fallacies or hypocritical justifications for what they do.

  • ||

    It must be exhausting to have to write this same article over and over. TEAM is all, all is TEAM.

  • Proprietist||

    Die Mannschaft Uber Alles!

  • ||

    Why would anyone think that shitrag of a newspaper would do anything but fellate Obama like the good demfags they are?

  • Eduard van Haalen||

    Ooh, shooting fish in the capacious barrel of the NY Times' editorial [double] standards - what a challenge!

  • A Serious Man||

    But this is different! We're talking about UNPRECEDENTED GOP obstructionism by right-wing extremists that are motivated by racism against the first black president!

    When Democrats did it they were acting selflessly and in the spirit of patriotism because dissent is patriotic!

  • ||

    This.

    The grand narrative being put forth by the liberal media is that the Republicans are just SO crazy, SO intransigent, SO extreme, that you really have to recalibrate your ideas of what it's acceptable for the President to do.

    When you are dealing with crazed "freedomists" you have to take extreme measures. Otherwise, the freedomists win.

  • Gladstone||

    We had to destroy Democracy to save it from the GOP.

  • Hugh Akston||

    Sports bar sports bar, uber alles!

  • Tulpa (LAOL-PA)||

    How is BO being consistent? Bush's appointment of Bolton occurred during an actual recess. It's comparing apples and orangutans.

  • T||

    Apples are overpriced, and orangutans make better librarians.

  • ||

    "Every Which Way but Overdue"

  • LTC(ret) John||

    As soon as the next batch comes back from the engraver, I will have your Order of the Golden Monocle sent along. Bravo.

  • Tulpa (LAOL-PA)||

    I'm sure the NYT omsbudsman will be all over this.

  • robc||

    You arent usually that funny.

  • Free Society||

    What's all this I hear about Democrats caring about civil liberties and checks and balances?

  • Hugh Akston||

    Your information is five years out of date.

  • ||

    And I'm beginning to wonder if they even cared then. Kind of like I'm beginning to wonder if Republicans actually care about reducing government spending.

    Hint: They don't.

  • ||

    When you have power, I cry for freedom because that is your principle. When I have power, I suppress your freedom, because that is my principle.

  • ||

    I'd ask how these people can look at themselves in the mirror when they get up in the morning, but then I realize that they don't ever look at themselves. They are robotic sheep partisans who probably don't even have the brainpower to understand what self-reflection or integrity is, let alone contemplate it.

  • Tulpa (LAOL-PA)||

    You're weak. You were always weak and you will always be weak until you take control! Now you know the truth about recess appointments. Be strong NYT. Avenge me. AVENGE ME!

  • ||

    What perfect timing! My cousin's father on Facebook was just saying that liberals who were opposed to certain things during the Bush administration would continue to be so even now that Obama is in office. (This in the midst of stating that the Iraq war is over and Afghanistan is winding down, several states are now rolling back the drug war, and people still want Gitmo. Those three being the examples of blatant liberal hypocrisy from 2006 Dems to 2009 and beyond Dems.)

  • Randian||

    We more commonly refer to those people as "uncles", you know.

  • nicole||

    Sometimes they're cousins too.

  • Hugh Akston||

    True, gB might be from Florida.

  • Randian||

    INCEST'D

  • ||

    The extra D is for a double dose of incest.

  • Randian||

    Then all he needed to say was "cousin", right? :P

  • nicole||

    Yep

  • ||

    I've never known him to be such, so my designation stands.

  • Randian||

    Oh, did he marry in later?

  • sarcasmic||

    To the tune of the Pink Panther

    Pedant, pedant
    pedant, pedant, pedant, pedant, pedaaaaaant
    pedadedadant

  • Gladstone||

    Democrats are bunch of big government statists that don't believe in any of the shit they spout abour "choice," civil liberties or war.

    Republicans are a bunch of big government statists that don't belive in whatever they spout about the free market or limited government.

    Are we clear?

  • LTC(ret) John||

    Aye.

  • ||

    Yes.

  • Tulpa (LAOL-PA)||

    Take that third-partisan rhetoric out of here.

  • Randian||

    Are you bored again today?

  • Tulpa (LAOL-PA)||

    Kind of. Wanna play Parcheese?

  • Randian||

    It's Parcheesi, Tulpa. And as you know, technically correct is...?

  • ||

    Wow. Just wow. And that guy that turns around and calls it "right-wing." Wow.

    Les mots justes...ah, oui:

    Fuck you New York Times.

    Wow.

  • Translucent Chum||

    Can the Reds keep the Senate in session if Harry wants to gavel it to recess? Do they have to vote to recess?

  • LTC(ret) John||

    I think so, that is why Reid made a deal to have the pro forma sessions, so he wouldn't have to share the room with all those evilmongers day after day.

  • Raston Bot||

    I'm getting lots of link fail in this post. The first link is the 2013 editorial, not the 2006 editorial. Kennedy's brief takes me to some Reason administrative site to which I am not allowed access.

    this is bush league, Audrey. AUDREY! this is bush league. if you were a man i'd punch you. i'm sorry.

  • Stormy Dragon||

    Given the paper’s previous stance in opposition to Bush’s recess appointments and “the grandiose vision of executive power” they embodied, you might expect the Gray Lady to cheer a judicial rebuke of Obama’s even greater abuse of that same executive power.

    Accusing your reader of being an idiot probably isn't a good way to sell magazines.

  • waaminn||

    So, why didnt I ever think of that man? Wow.

    www.Im-Anon.tk

  • Mickey Rat||

    The NYT is not being hypocritical. Hypocrisy means acting against your stated principles. The Times's stated principle is that whatever benefits the Democrats is good and proper. Root's mistake is in thinking that they have any attachment to the rule of law.

  • Dan||

    You're making the issue overly complicated, when it doesn't have to be. The main point is that the recess appointment power is not a tool for the president to be able to circumvent the senate.

    It's only legitimate purpose is for when there is a death or some other unforseen circumstance and some critical position is left unstaffed and the senate is in recess. Emergency appointments can be made in such circumstances. However upon the senate resuming it's duties those appointments then have to be properly confirmed or they are automatically nullified. It's an emergency contingency, it's not a free pass where the president can simply appoint whomever he wishes and the senate can't do anything.

  • XM||

    If those appointments were unconstitutional, then what happens to the appointees? Do they have to resign?

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