No, Mr. President, You Do Not Get to do Whatever You Want

Note that the payroll tax bill was passed by the Senate in a pro-forma session.

Emperor Obama is making his disdain for the US Congress, the US Constitution, and centuries of precedent even more clear in remarks today about his "recess" appointment to the Consumer Financial Protection Bureau:

When Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them. I’ve got an obligation to act on behalf of the American people.

No, Mr. President, you do not.

The US Constitution makes it perfectly clear what a president "can" do regarding these appointments (emphasis added):

Section 2, Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The US Senate web site clearly shows that the Senate is in session. While, one could argue that the Senate meeting in pro-forma session is a political trick to thwart Obama's ability for a recess appointment, the Senate is not in recess. Period.

Obama has criticized his predecessor for making recess appointments, but so has at least one member of Obama's Department of Justice:

Deputy Solicitor General Neal Katyal told Chief Justice John Roberts that "the [congressional] recess has to be longer than 3 days" for the president to have the power to make a recess appointment...

For those who challenge that a pro-forma session is not a "true" Senate session, note that the payroll tax bill was passed by the Senate on December 23, 2011, while the Senate was in pro-forma session. Either Congress is in session or not; Obama does not get to decide when the Senate is open for business and when it is not. That is the job of the House, which apparently, did not approve of the Senate going into recess.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

While it is almost a certainty that the GOP-led House did not approve a Senate recess for the sole purpose of blocking these appointments, the law is the law. Like it or not; political games or not.

Rush Limbaugh, for what it is worth, actually summarized the issue well:

If Congress "refuses to act," it is his job to sit down and talk to 'em and make 'em act and get them to vote the way he wants. He does not have the authority to run roughshod over them.

Some House Republicans are clearly playing political games; Obama should call them out rather than ignore the law. The American people dislike Congress more than the president. He should lambaste the GOP for their shenanigans rather than causing a potential constitutional crisis.

Obama must rescind these appointments and allow the Senate to "advise and consent" on these individuals. If the president feels he does not need to follow the law, then who does?