Good intentions and impatience substitute for constitutional authority

Copyright 2011 by John T. Reed

I have written on several occasions that liberals think good intentions and occasional tiny progress are a 100% substitute for results:

Now that mind set has gone beyond just being a substitute for results. Obama has decided it is also, along with impatience, a 100% substitute for constitutional authority.

Recess appointment

Barack Obama on 1/4/12 appointed a head of the Consumer Financial Protection Bureau who had previously been not approved by the U.S. Senate. Obama appointed him anyway claiming it is a recess appointment. The Senate says it is not in recess and their basis is that the Democrats held a pro forma session every three days in the past to prevent recess appointments and the Republicans honored that. In other words, Republicans in the Senate are now doing what Democrats did previously when they were in the minority, but unlike President Bush, Obama has ignored the fact that Congress is in session by the prior Democrat definition.

The Constitution says,

Article II, Section 2 of the U.S. Constitution

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.

So the issue turns on the definition of Recess.

There is no definition of Recess in the Constitution.

But that same part of the Constitution also says,

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Article I, Section 5, Clause 4 of the Constitution says neither house can adjourn for more than three days without the consent of the other house. In this case, the other house is the House of Representatives currently controlled by the Republicans headed by speaker John Boehner. As you would expect, Boehner’s house did not consent to an adjournment. A recess is a greater degree of shutdown than an adjournment.

The Senate previously addressed the Cordray nomination and did not give its consent to Cordray, Obama’s CFPB nominee. That means Obama has to nominate someone else. Obama says the Republicans in the Senate are disapproving all nominees—previously Elizabeth Warren, now running for Senate in MA against Scott Brown—because they oppose the law. True, but you cannot ignore the Constitution just because it has provisions that make it hard to get what you want through. Obama’s only recourse is to get the Constitution amended to end “advise and consent” or to get a filibuster-proof majority in the U.S. Senate in the next election. He has no constitutional authority to say I do not feel like waiting for those events so I will just ignore the Constitution.

In this instance, the actual law authorizing the CFPB says its head has to be approved by the Senate. Well, he was not.

The Senate began its current pro forma (skeleton staff number of senators) sessions on 12/20/11. On 12/23/11, that pro forma Senate passed the two-month payroll tax holiday extension and Obama promptly signed into law. So he is saying that the Senate IS in session when he wants them to vote for a law he wants, but not when they refuse to approve nominees he wants. The rules of the Senate allow such bills to be passed by “unanimous consent” without a senator by senator vote.

In addition to Cordray, Obama also appointed three members of the National Labor Relatons Board by recess appointments.

Can’t wait

Obama appointed him anyway. He said the public cannot wait.

The Constitution and the enabling legislation both say the public has to wait. The president does not have the authority to speak for the public or the middle class or any other group. He does not have the authority to amend the Constitution whenever he gets impatient with the Congress.

So his explaining that he needs to ignore the Constitution and the law because “we” cannot wait really means the royal we, that is, he doesn’t feel like waiting and, being a Harvard Law graduate, figures he can get away with violating his oath and the Constitution.

He rarely worries about constitutionality

His ignoring the Constitution because “we cannot wait” has also come up in a number of other situations like Obamacare that forces Americans to buy a private sector product. And the appointment of a zillion czars who head government departments but who were never approved by the Senate. I googled "unconstitutional Obama" and got 10,900,000 hits. Another was the National Defense Authorization Act which authorizes the military to detain terrorist suspects in the U.S. Obama announced the U.S. government would no longer defend the constitutionality of a federal law that bans same sex marriage. He previously said he would. Obama’s military involvement in Libya violated the constitution’s requirement that Congress declare war and the War Powers act that says he has to officially go to Congress within 60 days of starting such an involvement for permission. He did not.

When a court said Obamacare was unconstitutional, Obama said to ignore it thus

The White House officials said that the ruling would not have an impact on implementation of the law, which is being phased in gradually. (The individual mandate, for example, does not begin until 2014.) They said that states cannot use the ruling as a basis to delay implementation in part because the ruling does not rest on "anything like a conventional Constitutional analysis." Twenty-six states were involved in the lawsuit.

“Does not rest on anything like a Conventional Constitutional Analysis?” So now the Obama Administration gets to sit in judgment above the judicial branch of government on whether the court decisions of federal judges who were appointed for life pass presidential muster? The President now has veto power over federal court decisions?

An anti-war site bitterly complains about Obama’s 12/23/11 signing statement of a defense bill in which he said, among other things, that “our spending decisions shall not be treated as dependent on the approval of congressional committees.” Really!? The Constitution says nothing about committees, but it sure as hell says Congress decides all spending.

If you want more examples, Google the combination of Obama and unconstitutional.

Obama knows best and nothing else matters

He justifies all this on the notion that he knows best and his intentions are good we don’t have time for all these checks and balances and so sue me if you don’t like it.

What can we do about this? Someone may have standing to sue over some of this, but it rarely seems to happen. The Congress could impeach him, but they never do unless the guy is politically extremely unpopular within the opposition party and with many of his own party. Three presidents have been impeached—Andrew Johnson, Nixon, and Clinton—but none convicted. Nixon felt forced to resign. Clinton was disbarred but stayed in office.

Experts say that these recess appointments will be overturned by the courts, which would likely undo whatever actions they take in the interim. That will be a mess.

Too many ‘checks and balances’ but need amendment to change, not dictator

It is clear that both parties have increasingly used Constitutional checks and balances to block the other side from getting what it wants into law. It seems to have started with the nomination of Judge Robert Bork to the U.S. Supreme Court. So amend the Constitution to reduce the checks and balances. But those checks and balances are one of the most fundamental principles of the Constitution, and the sitting president cannot ignore them whenever the other party uses them to achieve their policy goals, especially when his own party does the exact same thing when they are not in the majority in the Senate.

One of the few actual jobs Obama ever had in his life was part-time Constitutional law instructor at the University of Chicago Law School—for 12 years. Obama’s familiarity with Constitutional law seems to have only bred contempt for it, notwithstanding his oath of office, which is also in the Constitution:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

The main difference between poor countries and rich ones is that poor countries lack the rule of law. When Nixon was forced to resign, the world media expressed great admiration for the fact that the U.S. really was a nation of laws, not of men. Apparently, not any more.