Earlier this year, Tea Party Sen. Mike Lee (R-UT) announced that he would oppose each of President Obama’s nominees in retaliation for the fact that Lee believed the president’s recent recess appointments to be unconstitutional. Lee also believes that national child labor laws, Social Security, Medicare, FEMA, food stamps, the FDA, and income assistance for the poor are unconstitutional.
Regrettably, Lee’s fellow Tea Partier Sen. Jim DeMint (R-SC) has now decided to follow Lee’s lead:
DeMint, who voted last fall for two Obama judicial choices from South Carolina, said he’s now rejecting all of the president’s nominees to protest his winter recess appointments of four controversial nominees to avoid GOP opposition.
“President Obama has shown a complete disdain for the people’s elected representatives and our duty to advise and consent on nominations,” DeMint told McClatchy.
“Unless he revokes his unprecedented recess appointments that defied the constitutional role of Congress, I don’t intend to support any of his judicial nominees this year,” DeMint said.
Needless to say, Lee and DeMint are wrong about the constitutionality of the president’s recess appointments. They and many of their fellow congressional Republicans have argued that the Senate can defeat the president’s recess appointments power by having a single senator hit the Senate’s gavel twice every three days (this is not an exaggeration). Yet, as two of President George W. Bush’s top constitutional advisors explained in 2010, the question of whether the president can make recess appointments does not turn on whether the Senate engages in some empty formality, rather, “the question ‘is whether in a practical sense the Senate is in session so that its advice and consent can be obtained.’”
Because the Senate was out of town and conducting no business when the president named his recent recess appointments, there is no good reason to doubt their constitutionality.