On January 13, 2014 the Supreme Court of the United States of America
held oral arguments in a case that challenges the recess appointments made by
President Obama on January 4, 2012. The way the process is supposed to work
according to the American Constitution is that the President makes his
appointments, and the Senate gives its advice and consent or withholds its
consent. But because the business of the nation cannot come to a halt while the
Senate is in recess, the Constitution gives the President the power to make
appointments during recesses.
President Obama did just that in three cases during a time
he regarded as being a recess of the Senate, but these appointments are now
being challenged on the grounds that the Senate was not in recess but was in a
situation it calls pro-forma session. There is a description and a discussion
of what that is in the editorial written by the editors of the Wall Street
Journal under the title: “Obama's Constitutional Education” and the subtitle:
“The Supreme Court seems skeptical of his appointee power grab.” It was
published on January 14, 2014.
To understand the logic behind President Obama's actions,
one must begin by accepting two things. First, the Constitution is a living
document. It is here to be interpreted according to the changing times, and if
necessary amended to better serve the times. Second, the deliberate use of
constitutional tricks so as to have it both ways by anyone – including the
Senate – must come to an end if the American ship of state is to plug the many
loopholes that have brought it near total submersion and close to disappearing
as a functioning state.
Needless to say that the Editors of the Journal oppose the
President in this matter; and to explain their reasoning, they begin the
argument by using the analogy of “Obama treat[ing] limits on executive power
like college students treat the 21-year drinking age.” Well, a better analogy
would be that of a game being played by two parties, one called Democratic and
the other Republican, surrounded by a gathering that is no longer a crowd of
fans but a crowd of cheerleaders.
And what game are the players playing? Nothing that you
would recognize because it is a monstrous something that has evolved as a
result of the loopholes that the system has accumulated over the decades. Look
how the editors of the Journal describe it – not with shame but with pride:
“The Senate had met on Jan. 3 [2012] to gavel in its constitutionally required
first day of session. It then declared itself in pro-forma session precisely to
block the President from using his recess power. Each day the Senate gavelled
itself into session and then adjourned.”
What game is that? Call it “trip me and I'll trip you.” To
this, President Obama responded by making it clear he is not playing this game
of fouls. And because he is not recognizing the game as being legitimate, he
considered the Senate to still be on the Christmas/New-Year recess. And so he
proceeded to make his appointments, and moved on with the business of the
nation.
But the editors of the Journal who are cheerleading the
party opposed to the President, are calling the move a power grab which,
according to them, is a tripping that is not allowed because it nullifies the
tripping that was done by the party for which they cheer. Not only have these
people created a monstrous game, they are now putting down monstrous rules to
govern it.
And both sides now stand before the referee that is the
Supreme Court. Those cheering on the side of the Journal are so enamored with
the game, they expect that the referee will rule in favor of legitimizing the
fouls and the tripping at the risk of seeing the American ship of state sink
and disappear for good. Those cheering on the side of the President hope that
the referee will rule in such a way as to make it clear that considering an
illegitimate trick to be null and void is not illegitimate.