Over at Campus Blueprint, my friend Wilson Parker has a post about the recent hoopla over President Obama’s “recess” appointments: Richard Cordray as director of the Consumer Financial Protection Bureau and appointments to the vacancies at the National Labor Relations Board.

I have to wish him the best on undertaking such a herculean task in defending the indefensible. But, unfortunately, this is much more than a “completely novel constitutional question.” A lot is at stake if we conclude that the executive branch has the power to determine when a separate and equal branch is or is not in session and can ignore constitutional precedent in order to make preferred appointments (also, it’s gotta be awkward for a party that, until recently, was denouncing the “imperial presidency” of George W. Bush).

The text of the Constitution granting the president the power to make recess appointments reads:

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 (Article II, Section iii).

As Richard Epstein, a renowned legal scholar at the University of Chicago and NYU, points out, the key words are “Vacancies that may happen during the Recess of the Senate [emphasis added].” He says:

What they mean is this: if the vacancy arises in the gap between terms, the President does not have to travel light just because the Senate is not in session.  In the founding period, Congress was not in perpetual session to say the least, so this provision meant that if there was no ability to go through the usual process of nomination and confirmation, the President could act on his own.

But that situation does not describe the situation with Cordray and the NLRB. Those vacancies existed prior to the “recess.” The NLRB appointments are particularly egregious because the Senate hadn’t even had time to set up hearings for the nominations.

Even if we accept the usual practice of recess appointments, Cordray and the NLRB appointments are unconstitutional. Wilson makes the point that the Senate was in pro forma sessions (which, ironically enough, were pioneered by Senator Harry Reid to prevent President Bush from making recess appointments) which aren’t actual sessions because- quoting from the Justice Department’s brief- the Senate cannot “receive communications from the President or participate as a body in making appointments.” He goes on to claim that, “the Constitution is unclear about what constitutes a recess”- this simply isn’t true. A “recess,” being a parliamentary procedure, is determined internally by each body. The Constitution did not intend to define the set of motions either house must adopt for its operations and left it up to the respective bodies. Thus, under current Senate rules, the Senate was not in recess. This forces the Obama Administration to re-define what constitutes a recess which, as John Yoo points out, is not in his purview:

It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having Senators sitting around on the floor reading the papers. The President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.

Ultimately for Wilson, however, it’s not about the Constitution. It’s about implementing the Obama policy agenda. But it’s important to note that there is no clause in the Constitution that assures a president that every single post he creates will be filled. It’s up to the Senate. So, yes, Republicans can hold these appointments “hostage.” It’s their constitutional prerogative.

However, if Republicans keep doing what they’re doing, they’re going to be in trouble when they face the people and have to answer to the gridlock that Obama will undoubtedly point to in his re-election campaign unless they are able to articulate an adequate defense for their actions (which I believe can be made).

That’s the system that the Founders intended. In the Federalist, they argue that “the injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.” For our current situation, this means that even if the Republicans prevent the Consumer Financial Protection Bureau from functioning in the short-term, it’s better to follow the constitution than to set a terrible precedent like Obama has.

I’m always surprised when either side doesn’t see the long-term consequences of their actions. Budget reconciliation- which allows measures to circumvent the filibuster- was used by Republicans to pass the Bush tax cuts, only to be picked up by the Democrats to pass ObamaCare (sidenote: isn’t it interesting that neither policy is accepted by the other side?). Every time the Senate changes hands, the new majority complains about the filibuster, the very same procedure they were defending to the bitter end when they were in the minority.

But it’s important that we retain these restrictions on executive or majority power. I wish that the Democrats currently salivating over Director Cordray could imagine a four-year Ambassador Bolton or Attorney General John Yoo when the next Republican president doesn’t get his way over a certain appointment. Imagine if only 51 senators were required to abolish the Department of Education.

Yeah, it stinks when things don’t go your way in the interim. But, if you have the right ideas, you’ll win in the long run. The solution isn’t to circumvent the Constitution to get your way, but be patient and persuade the American people of the merits of your case. That’s the only way to win a sustainable victory.