It is very hard and rare for Washington to rise above and beyond politics. Political affiliations, ideologies and cronyism have been the determining factors in most nominations, confirmations, rejections and withdrawals in Washington. You would assume that the most important factors in the nominations for cabinet and courts are personal merits, intellect, record, qualifications, experience and services to the country. Unfortunately, that is not the case, in reality. Starting from George Washington, there have been other priorities than merit. This does not mean that all the appointments and confirmations are not made out of merit and all the rejections and withdrawals were not based on lake of merit. Some of these decisions have been purely on merit or lake of merit.
The appointment process was originally designed to be relatively inefficient to confirm maximum possibility of appointments based purely on merit. President, who is the chief executive in our government, who is ultimately responsible for efficiently running the executive branch, and government as a whole, was awarded with the authority to make all the nominations for federal courts and cabinet positions while the basic constitutional principle of checks and balances was not overlooked. Senate, instead of house or congress, was made responsible to ensure a check and balance in these appointments.
The check and balance responsibility, in this case, was delegated to senate because it is relatively small and has equal representation from all states, big or small, guaranteeing efficiency in review and approval process while preserving the rights and interests of all the states. Constitution also guarantees the continuity in execution of governmental affairs. So, it authorized president to make appointments, instead of nominations when Senate is in recess, so that the functioning of important government departments, branches and agencies is not interrupted due to lake of the presence of appropriate authority. The authority to make recess appointments is used and abused in past, too.
But, president Obama has taken this abuse to a new and unprecedented level. Constitution has made it very clear that only senate can determine if it is in session or in recess. President, anyone else or any other authority cannot make that determination. Constitution is also very clear on the fact that in order for the president to make recess appointments, the recess has to be of a sizeable length, satisfying the basic need for recess appointments which is to prevent interruption or disruption in services provided by government.
There is also another related issue. In order to go on a recess longer than three days Senate has to get an approval from house. To satisfy these constitutional requirements, Senate holds pro forma sessions to avoid a recess longer than three days. In pro forma sessions few senators gather for few minutes, and usually does not perform any official business. But, these sessions make Senate available for performing any official business that may come along the way. Senate was holding pro forma sessions at the time. President Obama, a former professor of constitutional law, totally overlooked these pro forma sessions, and went ahead to make appointments, three out of those four were in NLRB, National Relations Labor Board, a federal agency which performs the controversial roles of judiciary and execution. Many argue that only judiciary is constitutionally authorized to perform judiciary functions. Anyways, many federal departments and agencies are now violating constitution in the sense that they perform judiciary functions as well. These include United States Immigration and Naturalization Service, FCC, FTC, EOC, U.S. AbilityOne Commission and State Employment Commissions, among others. Even experts do not know the total number of federal departments, commissions and agencies. Most estimates agree that the number is over 2000.
Federal government employs 2.8 million people. Total number of Americans working for all federal, state and local governments is 40 million. If you include contractors, the number of federal employees can easily be doubled. Current federal spending is 3.7 trillion dollars, state governments spend a total of 1.5 trillion dollars, local governments’ total is 1.7 trillion, and net government spending in U.S. is equal to 6.3 trillion. Current GDP = 17.3 trillion. Deficit = .65 trillion. Debt = 20.9 trillion. Who is paying for all this? Of course, tax payers. There are over 300 positions in cabinet agencies, and over 100 in independent and other agencies that require presidential nominations.
Approximately, about 4000 civilian and 65000 military nominations are submitted to Senate during each two-year session of congress. This is the size of government president is looking over. Still, this power and authority is not enough for him. He wants to circumvent the constitutional check and balance by over reaching the congressional authority. He may gotten away with it, like many of his other serious constitutional violations. But, luck did not favor him this time. A complaint was filed against a Pepsi-Cola bottler and distributor in NLRB for labor law violations. Board ruled against the Pepsi-Cola agent. The agent went ahead and filed a law-suit saying that board’s decision is not valid since three of its members were appointed unconstitutionally, by president, using his recess appointments authority when Senate was actually not in recess.
Ultimately, Supreme Court accepted the agent’s argument and declared that the appointments were, de facto, unconstitutional. This was a unanimous decision. Since, 2012 Supreme has unanimously ruled 13 times that president is in violation of constitution. These do not even include the serious violations like going to war without congressional authorization. These many confirmed violations in just over two years cannot be a coincidence, especially when professor-in-chief of constitutional law is in charge.
While executive branch has been enormously growing its power and authority since World War I, the constitutional check and balance is still in effect to a great extent. President cannot do whatever you want to do. This is another reminder that our constitution which established and maintained world’s first and most powerful constitutional, democratic republic for over two hundred years, and helped us build the world’s largest and richest economy in less than two years, by the grace of God, is still in place and showing its miracles. If we stick to it even more, we can have much better results. Only constitutional principles can help us end continuous state of wars, big governments, over taxation, over regulation, over reaching laws and bankrupting government expenses.
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