On Friday's Special Report (1/6/12), the "All-Star" panel’s Lightning Round discussed the jobs numbers, then turned to the President's recess appointments because it won the online vote from viewers on what they wanted the panel to discuss. Bret Baier said, "Richard Cordray appointed. How big a deal is this? Obviously, the controversy is a legal and Constitutional one and whether the Senate was really in recess."
Panelist Steve Hayes said, "What the President's done is outrageous. I mean, he can't just decide willy-nilly that the Senate is in recess if the Senate is not in recess. I mean, what’s he going to do? If the Senate leaves for a weekend, is he going to decide he's going to recess appoint then? This isn't the President's prerogative. And there is a clear Constitutional question."
Panelist A.B. Stoddard said, “I don’t know that he does too much damage to himself with the recess appointments.”
Panelist Charles Krauthammer said, "If the President wants to breach the Constitution to achieve something important, let's say he needs a Secretary of Defense and he can't have it. And he says ‘OK, I'll decide, the Senate's in recess and I'll do it,’ that’s one thing… Krauthammer called it "a way to provoke the Congress and to link Republican Presidential candidates with the unpopular Congress. It's entirely about elections, and that makes it a disgrace."
The panel made it sound as though President Obama breached the law and the Constitution and the only question was how important it would be to the electorate. But host Bret Baier didn’t mention that there’s an argument for President Obama’s decision. As Think Progress noted in a post called, President Obama Still Has All The Legal Authority He Needs To Make A Recess Appointment Right Now,
Although recess appointments that occur while the Senate is at least pretending to conduct business every three days are rare, they are rare for a very simple reason. Few people in American history have done more to obstruct American governance than Senate Minority Leader Mitch McConnell (R-KY) and his fellow Senate Republicans. As such, it has rarely been necessary for a president to use his constitutionally granted authority to appoint officials during a very short recess.
There are no modern precedents for McConnell-style mass obstructionism, and there is no Supreme Court decision considering how long senators must be out of Washington before recess appointments are allowed. There was, however, a showdown during the Bush Administration over President Bush’s decision to recess appoint Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit. In Evans v. Stephens, that court considered whether Pryor’s appointment was invalid because it occurred during a very short legislative break. This court is the highest legal authority ever to weigh in on the question of whether a break in the Senate’s calendar must last a certain number of days before a recess occurs, and it answered that question with an unambiguous “no”:
Special Report, airing at 6PM ET, is supposed to be part of Fox News’ “objective news” line up. They should have noted the other side of this argument.