The final count in the conservative critique involves the president’s recess appointments. Obama has used this constitutional power more sparingly than recent predecessors; President Clinton made 139 recess appointments, President Bush 171, and Obama so far only 32.
But Obama has also been bolder in deploying the power, acting even when the Senate was holding brief sessions designed to frustrate recess appointments. Bush refrained from this in-your-face move, although, notably, his Justice Department concluded that would be constitutional.
The administration argues that Obama acted with restraint — the appointments were only to agencies at risk of not functioning — and in the face of Senate intransigence. But another president could use this tactic to gut the advice-and-consent requirement. The legality of Obama’s appointments is now before the Supreme Court.
The constitutional tug-of-war between Congress and the executive arises in every administration. The tensions are especially acute when power is divided between the parties, and even more inflamed in an era of relentless obstructionism. Presidents, as Obama has acknowledged, are driven to take unilateral action when the normal legislative process would be the better route.