Of course President Obama is not concentrating on campaigning, White House press spokesmen assured us — as the president headed off to Chicago for three fundraisers and a drop-in at his campaign headquarters, two days after a high-roller fundraiser choked off traffic five blocks from the White House, with the assistance of a score of D.C. police cars.
No one, or at least no one who is paying attention, is fooled. It’s standard presidential procedure to say you’re not absorbed in campaigning even as you go out to raise money every other day. Bill Clinton, in my view, spent an undue amount of time fundraising, George W. Bush spent more, and Barack Obama makes them both look like pikers.
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So Obama’s scorn for the truth in this regard is only a minor matter. His scorn for the Constitution is something else.
That scorn has been expressed most recently in his “recess” appointments of members of the National Labor Relations Board and the chairmanship of the Consumer Financial Protection Bureau. The quotation marks are appropriate because when he made the appointments the Senate was not in recess as the Constitution requires.
Article II, Section 2 of the Constitution says that presidential appointments must be confirmed by the Senate unless Congress provides otherwise. But anticipating that the government may need officials when the Senate is unavailable, the section further provides that “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 the next session.”
What constitutes a recess? Article I, Section 5 reads, “Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.”
The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.
The White House has belatedly trotted out an opinion from the Justice Department’s Office of Legal Counsel (headed by a political appointee) saying that the president was justified in considering the Senate in recess, because the sessions it was holding every three days were just pro forma or, in the words of Obama defenders, “gimmicks.”
Factually this is flat wrong. At one of those sessions the Senate passed the payroll-tax-cut extension, an important piece of legislation.
More important, what gives the head of the executive branch the authority to decide whether one house of the legislative branch is conducting serious business? Can the president decide that the quality of Senate debate is so poor on any particular day that he may deem it to be in recess?
The recess appointments Obama made are to important offices. The National Labor Relations Board last year issued a complaint against Boeing for building a $1 billion aircraft plant in South Carolina. The complaint was withdrawn only after the union representing Boeing’s Washington state workers bludgeoned the company into promising more jobs there.
The Consumer Finance Protection Bureau, established by the Dodd-Frank Act, has unusual powers, with a guaranteed revenue stream rather than reliance on congressional appropriations and a director with a fixed term (but can it extend beyond the end of the next session of Congress?) and independence from other regulatory authorities.
On this, Obama defied not only the Constitution, but Dodd-Frank, which explicitly states that the CFPB head can only take legal action after he is confirmed by the Senate. Presumably anyone aggrieved by one of his orders will sue and probably prevail.
So the appointment may turn out to be a futile act. But, hey, it’s good fodder for campaign ads.
That’s substantiated by the explanation for the appointment you can find at my.barackobama.com: “When Congress refuses to act, he will.”
This looks uncomfortably close to the view taken by King Louis XIV. “L’etat, c’est moi,” he is supposed to have said, and you don’t need John Kerry’s or Mitt Romney’s command of French to know that that means one-man rule.
The Framers of the Constitution saw it a different way. When the Senate refuses to confirm a presidential appointee, that person does not take office. When the Senate is not in recess, the president cannot make a recess appointment.
The Framers thought it more important to limit power than for government to act quickly. Barack Obama disagrees.
Republican presidential candidates have been praising the Founding Fathers. Obama has been defying them. Interesting contrast.
It's important to remember that Obama violated the recess appointment clause in TWO ways. The clause reads:
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.
"Vacancies that may happen during the Recess of the Senate"
Did any of the vacancies happen during the recess? No. the vacancies happened while the Senate was in session and, therefore, are not eligible for recess appointments.
It seems like this aspect of recess appointment has been ignored for who knows how many presidencies.
I've had enough. Enough of a government that flouts the rules by which it is supposed to be run.
"So the appointment may turn out to be a futile act. But, hey, it’s good fodder for campaign ads."
I'm assuming this meant fodder for Obama's ads about a do-nothing Congress, but the GOP should latch onto the theme this man's radical ambitions and use it to the max in the campaign. Is Romney willing to do that? All I can say is that if he's the nominee, he'd better get Gingrich on his team as a debate coach.
And when he isn't thumbing his nose as the Constitution, he's having the Supreme Court upbraid him for TRYING to thumb his nose at the Constitution, as they so ably did last week ... External Link
He is a terrible president and would be worst in a second term because everyone is. My concern is what happens if democratic methods like the Tea Party has used so far have a thumbed nose put on them next year?
And where is our Republican "leadership" while Obama shreds the Constitution? Just putting out statements to the press about how this is all so "inappropriate" and how "concerned" they are about it all - but nothing more! They don't have the guts or imagination to do something like filibustering every bill in the Senate or refusing to give unaminmous consent to any legislation in the Senate until King Barry finally submits to that bothersome Constitution.
Why should Obama worry about silly things like the Constitution? He knows he can do anything he wants because his opposition is too cowardly to do anything to stop it. Republicans might be called racist or draconian or something similar by the media and they can't handle something distasteful like that. This is our Republican leadership. This is our plight. Democrats are on a mission to rule us peons, and the guys we elect to fight them run around like a bunch of henpecked husbands who will do anything just to stop the media from yelling at them.
If this country is going to be saved, it's going to be by us, not our elected "leaders".
All the comments above are true, but too little, too late. Where is the Republican outrage? Where are the House investigatory committees? Where are the bills being introduced to defund all illegal appointeees, all non-consitutional czars, the DOJ's suits against Arizona, etc? Where are the articles of impeachment?
Where are the million American citizens standing in the national mall demanding the tyrant step down?
We trust our elections too much. When all of the mechanisms of opposition roll over and play dead, one can only expect Mr Obama to continue to act in a tyrannical, reckless fashion.
You are 100% correct Dr. Robert. Why have we not heard the word "impeachment" uttered by anyone in the Republican Party, as we surely would have heard it from Dems if GWB were still in the WH.? There's more than enough evidence available.
The Republican Party has become a symbol of weakness and it has outlived it's usefulness.
Perhpas NR Online should create a "Hail Caesar" page along with "Campaign Spot" and "Planet Gore" in the header to call out these one-man rule events? Need to go back and gather all of them from Jan 20, 2009. Would help document the file for the voters and those interested in such things.
Let's go back before 2009. Obama single-handedly destroyed the public-financing system for presidential elections. While I'm not a huge fan of public financing, it was the accepted, bipartisan practice--dare we say part of the unwritten constitution?--since Watergate. But it was an inconvenience for Imperator Barry, so away it goes.
President Obama: Are you the real Republican nominee?
Brian: No.
President Obama: No? Then why do you dress like him?
Brian: He's a symbol... that we don't have to be afraid of scum like you.
President Obama: Yeah, you do, Brian. You *really* do!
Unfortunately, Obama can count on the support of those "educated" by our schools and universities who are gullible enough to believe that the framers were just a bunch of racists and sexists and that in a post-modern age we really shouldn't feel bound by the constraints of the constitution, which is, after all, a "living document."
I aree that Obama has shown a comeplete disregard for the constitution, though he has a lot of help in doing this. I believe it started under Clinton, with his ridiculous First Amendment Zones (a complete affront to the concept of free speech and assembly), and has been increased with each successive President. The latest attack on the constitution, the NDAA of 2012, shows that the constitution is now officially dead. The USSC could have reigned things in when Clinton launched the first attack, but they have gone along with it. Conservatives have been "surprisingly" quiet about all this (ah, who are we kidding, there are precious few conservatives left). When the occupation protests were violently shut down by local police force after local police force (not that they stopped the movement, the protesters are back in Zuccotti park already) and conservatives sat back and cheered the cops on, I knew that all those bellicose statements of "I might not agree with what you are saying, but I will defend with my life your right to say it" were nothing more than self-aggrandizing hot air. Blowhards one and all.
Barone wrote: "...That scorn (for Constitutional process) has been expressed most recently in his “recess” appointments..."
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Where is the Republican impeachment movement? Are they afraid of Obama's explanation?
Wow, the author and the horde of commentors all really believe that a lawfully elected President of the United States of America is thumbing his nose at the Constitution and all you can muster up is a couple of mesely recess appointments as rock solid proof of his disregard to the Constitution along with parsing the "in session, proforma session" crap. This is beyond comic relief, it is group idiocy at it's best!!!!
