Last week President Obama made four recess appointments, three to the National Labor Relations Board and one to head the Consumer Financial Protection Bureau. The Constitution clearly allows a President to make “recess appointments”. Section 2 of Article II says:
“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
The problem with President Obama’s recess appointments was that the Senate wasn’t in recess. Senate Republicans, picking up on an idea Harry Reid started in 2007 to stop President Bush from making recess appointments, have forced the Senate to hold pro forma sessions instead of going into recess. But President Obama didn’t care. He decided on his own that the Senate was “functionally in recess”, so he went ahead with his appointments.
Which is where Clarence Page’s Op-Ed article in Wednesday’s Chicago Tribune comes in. Mr. Page agrees there is a constitutional question here, though the way he describes it makes one doubt he considers it all that serious:
“It's about such heavy-duty constitutional questions as how far an embattled president can go to perform his job despite cynical lawmakers who leave no tricks up their sleeves in order to stop him.”
Mr. Page goes on to talk a lot about the policy questions involved and why President Obama is right and the Republicans are wrong. But at the end of his article, Mr. Page sort of returns to the constitutional question:
“Either way, the Cordray fight [i.e., the fight to appoint Richard Cordray as director of the Consumer Financial Protection Bureau] joins other recent events in signaling a less conciliatory Barack Obama. He is framing this battle as a fight against obstructionist Republicans who stage phony sessions to defend big banks against middle-class Americans. Even if Obama were to lose in the Supreme Court, he stands an excellent chance with the court of public opinion.”
What Mr. Page is missing here is the importance of process. Mr. Page sees President Obama’s policies as right and those of his opponents as “obstructionist”. But the key to our democracy, and to the protection of our democracy, is not getting policy right but following proper and agreed-upon processes and procedures.
Our liberties are not protected by those in Washington making the right choices on policies. (Fortunately.) Our liberties are protected by making sure those who govern us follow the processes and procedures that have been established for running our government. When those in power decide that their policies are important than our laws and Constitution, i.e., when they decide the ends are more important than the means, our democracy is endangered.
And I really wonder if Mr. Page has thought through the implications of his last sentence:
“Even if Obama were to lose in the Supreme Court, he stands an excellent chance with the court of public opinion.”
Does Mr. Page really think the court of public opinion is more important than the Supreme Court? There have been many times when the court of public opinion wouldn’t have given us much of a First Amendment. Protections for people accused of a crime wouldn’t do well in the court of public opinion, either. And in 1954 I doubt the court of public opinion would have given us a unanimous decision in Brown v. Board of Education, assuming Brown would have won at all.
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Update (1/12/12 8:15 am): Fixed a typo in the ninth paragraph.
Update (1/21/12 4:45 pm): A shortened version of this post appeared as a letter to the editor in "Voice of the People" in today's Chicago Tribune. See here.
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