Earlier this month, two conservative business groups filed a motion in federal court challenging President Obama’s recent recess appointments on the grounds that the Senate can block such appointments by having a single senator hold a sham session every few days. Yesterday, however, this legal argument received a skeptical response from an unexpected audience: Fox News.
In a segment discussing the case (which features a constitutional attorney very familiar to the readers of this blog), Fox host Shep Smith described the lawsuit as a “real long shot.” Fox legal analyst Stacy Schneider said that she thinks “the president is going to win in this case,” and another Fox legal analyst, Randy Zelin, launched into an rant about the Senate Republicans’ tactic of pretending the Senate is not in recess because it occasionally holds a sham session:
If you watched coverage of the [Senate] floor, there was nobody there! It was ridiculous. So I think this is the president’s way of saying “you ain’t going to play nice in my sandbox? I ain’t going to play nice in yours.” And it’s this kind of thing — because at the end of the day, how does it help us, the citizens? It doesn’t.
Fox’s unexpected defense of President Obama is just another sign of the weakness of the case against Obama’s actions. As two of the Bush Administration’s top constitutional attorneys explained in a 2010 op-ed, the Senate is in recess when it is “not capable of acting on the president’s nominations.” Moreover, when the president announced his recess appointments, the Senate was adjourned under an order stating that there will be “no business conducted” for weeks. So the Senate was in no shape to confirm a nominee until it returned to Washington, and the president acted entirely within his legal rights in making recess appointments.
Hopefully, the fact that the case against these recess appointments is so weak that even Fox is skeptical of it will deter any of the more ideologically rigid members of the federal bench from ignoring the law and blocking these appointments.
