The Daily Caller

The Daily Caller

Who has the fortitude of Robert Byrd today?

Hans von Spakovsky
Senior Legal Fellow, The Heritage Foundation

What are conservative members of Congress doing to combat President Obama’s unconstitutional “non-recess” appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau? Not much.

Never mind that Obama’s circumvention of the Senate “is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress,” as The Heritage Foundation’s Edwin Meese and Todd Gaziano put it.

Yes, several House committees have conducted or scheduled hearings on the purported recess appointments. That’s a good start. But Congress should do much more.

Talk is cheap. Several conservative senators have condemned the president’s actions and sent a letter to Harry Reid asking him to explain his change from opposing Bush recess appointment during pro forma sessions to supporting Obama’s appointments. But none have attempted to use their authority to actually do something about it. This failure will further depress voters who expected conservatives in Congress to use their new numbers to stop abuses.

That is in stark contrast with what liberals have done in the past. Former Senate Democratic Leader Robert Byrd was never afraid to protect the Senate’s prerogatives. Once when he was in the minority, Byrd held up more than 70 nominations in every area of the government, including ambassadors, assistant secretaries, federal circuit and district court judges, and members of many agencies, commissions, and boards. He even put a hold on the promotions of more than 5,000 military personnel. More importantly, when Sen. Byrd took action, his fellow Democrats enforced his stand.

What was Byrd so angry about? President Reagan appointed seven individuals during the August Senate recess in 1985. Byrd argued that the several-week August recess did not qualify as a “protracted recess” to permit such appointments. He told the president that “any other interpretation of the recess appointments clause could be seen as a deliberate effort to circumvent the constitutional responsibility of the Senate to advise and consent to such appointments.”

Byrd’s view of the recess appointments clause departed from prior precedent and legal opinions from the DOJ Office of Legal Counsel. Even so, he had the courage of his convictions and was willing to bring all presidential nominations to a complete halt. Although President Reagan did not agree with Byrd’s constitutional position, he finally agreed to give advance notice so that Senate leaders could comment on the potential recess appointments and possibly consider not recessing for more than three days.

Why did President Reagan, who didn’t flinch in negotiations with the Soviets and fired the PATCO strikers, agree to Sen. Byrd’s demands? Because compared to those situations, a president can do very little in the face of a sustained Senate filibuster of his nominees.

Yet to date, senators have taken no meaningful action to oppose President Obama’s unlawful appointments. There has been no statement from senators of either party, who should be concerned about this violation of the Constitution, that they intend to delay any of the president’s other nominations. No one has even tried to force a vote to put senators from the president’s party on record regarding his actions.