A newly resurfaced court briefing filed by the late Massachusetts Democratic Sen. Ted Kennedy in 2004 shows he would have opposed the logic President Barack Obama used to make four recess appointments last week.
In the amicus briefing, Kennedy argued that President George W. Bush’s recess appointment of Judge William Pryor to the 11th Circuit Court of Appeals was unconstitutional. Kennedy thought the appointment was unconstitutional because the Senate was not officially on a recess. The Senate had been adjourned for 10 days before Bush exercised his recess appointment power.
“President Bush announced Judge Pryor’s recess appointment on the afternoon of Friday, February 20, 2004, the last business day before the Congress returned from its ten-day adjournment,” Kennedy wrote. “As discussed in the argument below, that brief adjournment is by far the shortest intra-session ‘recess’ during which a president has ever invoked the Recess Appointments Clause to appoint an Article III judge.”
When Obama appointed Richard Cordray to the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board, though, he waited just one day after the Senate adjourned to make the appointments. Obama’s own lawyers believe he’s supposed to wait for at least three full days after the Senate adjourns to make “recess” appointments.
That means that not only did Obama break his own administration’s legal argument about how and when to make recess appointments, but Obama broke guidelines and legal arguments Kennedy outlined less than 10 years prior.
Americans for Limited Government Communications Director Richard Manning told The Daily Caller that Obama crossing the late Senator Kennedy’s legal arguments is ironic.
“Ted Kennedy’s vigorous opposition to legitimate presidential appointments makes it impossible for any honest Democrat to support the Obama appointments, which don’t even pretend to have the fig leaf of a congressional recess to justify them,” Manning wrote in an email.
It’s unclear what, if anything, congressional Republicans will do to fight back against Obama’s move.