Although we're not the umpires, we're crying foul.
By making four appointments to high office this week without the consent of the Senate, President Barack Obama is playing outside the lines in what has become the frustrating dysfunction we call Washington.
In the serious matters of state, the U.S. Constitution provides the ground rules. The Constitution requires the advice and consent of the Senate for certain offices, and the enabling legislation for the Consumer Financial Protection Bureau and the National Labor Relations Board require such approval.
The Constitution also allows the president to fill "all Vacancies that may happen during the Recess of the Senate."
Given the dysfunctions of the Senate in recent decades, presidents who have been frustrated by the Senate's blockage of appointments have used their constitutional power to make so-called recess appointments to help staff their administrations. Bill Clinton made 139 recess appointments and George W. Bush made 171. Obama has now made 32.
Unfortunately for Obama, the Senate wised up to the use of recess appointments under George W. Bush, when Senate Democrats began holding brief sessions during what would normally be vacations as a way to avoid Republican recess appointments.
This year it is House Republicans who have upped the ante by invoking their constitutional right under Article 1 Section 5, to not consent to congressional adjournment. As a result, the Senate has convened in pro forma sessions every three days.
Consequently, according to the Constitution, congressional rules and precedent, the Senate is not technically in recess. Therefore, the president did not have the authority to make this week's appointments to the CFPB and the NLRB.
Is this effort to keep Congress technically in session just to avoid recess appointments a strategic use of the rules? Absolutely. But it is use of the rules. By contrast there is no rule that we are aware of, other than the rule of will, that justifies the president's action.
Given the importance of the CFPB and the NLRB to his political base in an election year, we understand the political importance of these appointments. We just can't find anything in the rule book to say they're allowed.
Politically advantageous or not, the appointments are misguided for many reasons. They escalate the cynical mutual contempt between the branches of government. But because of their dubious constitutionality, they actually put all of the policy-making decisions made by these appointees at risk. Rather than providing certainty in administration, every policy decision from CFPB and NLRB with these appointees will be open to court challenge. Only after courts of competent jurisdiction decide on the legality of these non-consensual non-recess appointments will we have certainty.
Washington's increasingly cynical and strategic use of the ground rules is frustrating — but playing without rules is dangerous.