FLASHBACK--Ed Meese: Obama's Recess Appointments 'Breathtaking Violation' of Constitution

By Terence P. Jeffrey | January 24, 2012 | 2:07 PM EST

President Reagan meeting with Edwin Meese in the Oval Office on Oct. 16, 1981. (Reagan Library)

(CNSNews.com) - Former Attorney General Ed Meese says the U.S. House of Representatives should pass a resolution condemning President Barack Obama for acting unconstitutionally in appointing a director to the Consumer Financial Protection Bureau and three members to the National Labor Relations Board without Senate confirmation and when Congress was still in session.

“I wish it would also be the Senate,” Meese told CNSNews.com, “but that probably wouldn’t happen because of the fact that [it is] in Democrat hands. But the House of Representatives should pass a sense of the House resolution condemning the president for this, so that the people themselves will understand that he is doing an unconstitutional act.”

On Jan. 4, President Barack Obama ostensibly used recess appointments to name Richard Cordray the director of the new Consumer Financial Protection Bureau and to name Sharon Block, Richard Griffin and Terence Flynn to the National Labor Relations Board.

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Although the Constitution does give the president the power to make recess appointments without Senate confirmation, that power only applies when the Congress is in recess. However, under the terms of the Constitution, the Congress was in session on Jan. 4, when Obama made the appointments in question.

Meese and Todd Gaziano--a former Department of Justice Office of Legal Counsel lawyer who works with Meese at the Heritage Foundation's Center for Legal & Judicial Studies--published an op-ed in the Washington Post on Jan. 6 criticizing Obama’s unconstitutional appointments.

“President Obama's attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate's advise-and-consent role,” Meese wrote. “It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

Appearing on “Online With Terry Jeffrey,” Meese explained why he believed Obama’s appointments were not “recess” appointments and violated the Constitution—pointing specifically to Article 1, Section 5, Clause 4 which says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”

“Now, under this express language of the Constitution, on January 4, when the president named Mr. Corday and named the three members to the National Labor Relations Board was Congress in session or not in session?” CNSNews.com asked Meese.

“I believe that they were in session, yes,” Meese said. “In other words, I believe that they were not in recess. And the fact is they were holding sessions on a regular basis every three days.”

“Now, the interesting thing is that the Senate itself has indicated that they were in session by holding the pro-forma session,” said Meese. “During such a session at the end of 2011, during exactly the same kind of a session, they actually passed a bill, the payroll tax holiday. So there is no difference between that session and the session that was held in January, particularly on the fourth of January, during the time in which the president usurped the constitutional requirements and made these appointments.”

Meese pointed out that when George W. Bush was president, Senate Majority Leader Harry Reid kept the Senate in session under the same terms as it was in session this Jan. 4, precisely for the purpose of preventing Bush from making recess appointments.

Meese said Bush did not try to appoint people to office without Senate confirmation during those periods “because he believed in following the Constitution.”

“That’s the big difference between him and the current president,” said Meese.

Meese noted that while Obama flouted the constitutional provision that one house of Congress cannot go into recess without the permission of the other house, Senate Majority Leader Reid did not.

“As a matter of fact,” said Meese, “the Senate itself has acted properly in accordance with the Constitution and continued to have sessions and not go out of session into a recess because they didn’t have the permission of the House.”

Meese said that in addition to passing a resolution condemning President Obama for an unconstitutional act, the House also should hold hearings to probe the basis for the administration’s action.

“There should be committee hearings to find out more about the rulings, on what basis, on what legal rulings, they’re basing their actions on,” Meese said. “There has been what purports to be a legal opinion by the Department of Justice after the fact. It’s dated two days after the actual appointments.”

“[T]his opinion itself has very little value,” said Meese, “because it is less a legal opinion than it is an attempt at justification of the unconstitutional acts of the president.”

Meese said that the hearings could be held in the House Judiciary Committee, the House Oversight and Government Reform Committee, or the Financial Services Committee, which has an investigative subcommittee.

Meese said Congress should ask for all documents from the Justice Department relevant to any advice the department gave the White House on the appointments in question.

When asked whether a congressional committee should question Attorney General Eric Holder on the matter, Meese said: “Absolutely.”

Today, Richard Cordray is appearing the House Oversight and Government Reform Committee. The topic of the hearing is: “How Will the CFPB (Consumer Financial Protection Bureau) Function Under Richard Cordray.”