Playing Politics with the Constitution and the Law
--by
Today POLITICO Arena asks:
Did Obama have the authority to make the Cordray and the NLRB appointments, since the Senate is technically not in recess? And will the president’s shift from bipartisan conciliator to partisan agitator pay off? My response:
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.
Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.
But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’ A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.
So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.
Where are all those outraged democrats who lambasted President Bush for supposed evils and disregards for the Constitution, and the rule of law, now? Oh, that's right! Leaning back on their hypocritical backsides praising the lawless actions of THEIR president! You folks on the left want to blast senate republicans because they thwart confirmation of Obama's nominees? What hypocrites! Democrats have done the same.
I have never been more angry at a sitting president in my entire adult life than I have been with president Obama. I cannot wait to see this man leave the White House! Four more years of this man and we may not even have a country left recognizable by constitutional standards! It's obvious that Obama views the constitution with contempt, and is in violation of his oath of office.
According to Mark Levin, Wednesday, January 4th...
"The president now considers it a political virtue, that he's doing precisely what he criticized Bush for doing; making laws as he goes along. Now Obama says, 'I refuse to take no for an answer... When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.'
"Ladies and gentlemen, that is a forthright statement of a dictator."
Right. If Obama can't get what he wants legally, he'll ignore the Constitution and do it anyway, like the sovereign he believes he is.
Then there's this from Arnold Ahlert at the Canadian Free Press...
“When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.” — President Barack Obama
While I always identify the speaker of a quote, it is especially necessary this time. Why? Because if you remove the president’s name from the statement, it becomes really easy to imagine any number of other people making it. For example, plug in Chinese president Hu Jintao, Venezuelan president Hugo Chavez, or Russian Prime Minister Vladimir Putin. Is there any doubt that any of these men would we more than willing to act, if they saw an “obligation” to do so, without the messy necessity of dealing with their respective legislative bodies?
Remember when, right after the 2010 election, a lot of the media were wondering if Barack Obama was going to “move to the center” or practice the politics of “triangulation” that got Bill Clinton re-elected? Such musings are a testament to the self-inflicted blindness that affects far too many people who get paid to see through such nonsense.
When this man was running in 2008, I implored Americans to understand that this country was divided by many issues, but first and foremost among those issues was a simple reality: there are those Americans who add up the plusses and minuses of the American experience and come to the conclusion that this country, warts and all, is still the best nation of earth — and the last, best hope of mankind. Then there are those Americans who engage in the same calculations and conclude that we are at best, just another country, and at worst, the nexus of all that is wrong in the world.
Bewitched by the monumental load known as hope and change, Americans put the latter group in charge of running the nation. They were so bewitched that even when the president, five days before the election, proclaimed he was only that far away from “fundamentally transforming the United States of America,” a majority of voters elected a man with the deadliest combination of inexperience, radical ideology and unbridled hubris this nation has ever endured. And just for good measure, they gave him an unassailable majority in Congress including, for a brief time, a filibuster-proof majority in the Senate.
[...]
One more year of this man thumbing his nose at the Constitution whenever it suits him will be damaging enough. Five more years? The 2012 election may come down to retiring Mr. Obama — or the Constitution.
That's what this blog has been about from the very beginning... questioning the impact of an Obama presidency on the future of the United States of America. The question repeated over and over these last three years has been exactly Ahlert's... In 2012, will we retire Mr. Obama, or the Constitution?
The truly amazing aspect of all this is Media's complete lack of coverage of Obama's repeated constitutional 'missteps' -- and I'm being generous. Media has outright failed in it's self-ascribed duty to be the watchdog of the American people against government tyranny. They have failed. All one needs to do to confirm this is check the ratings of MSNBC, CNN, NBC, CBS, and ABC News to understand that the American people have abandoned the Pravda networks, because, in their eyes, Mainstream Media has failed main street.
These failed propaganda outlets can mock Fox news all they want, but Fox's ratings are what they are because the American people, by and large, recognize that Fox is 'fair and balanced' in their reporting of the news-- much of their commentary shows are fair and balanced as well. The minority of news viewers who insist the Pravda networks are superior in balance and accuracy are deluded sufferers of wishful thinking... because the ratings say otherwise. People desire truth, and they'll invariably flock to wherever the greatest truth can be found.
The point, however, is that America is failing fast, and I don't mean economically or in global stature (although these things are occurring as well). America is failing constitutionally. If and when that happens she will cease to the nation of our birth... that Lady will have died. If and when that day ever comes, we may as well be living in Venezuela for all our votes and say in government will matter. We will be plantation slaves to our political masters.
Some more reading for you...
The Lawless Obama Regime
Here's What America Will Look Like If Obama Wins
This Power Grab's a Sign of Weakness
Obama Thumbs Nose at Constitution on 'Recess Appointments'
Cordray's Recess Appointment Sure Doesn't Look Constitutional to Me
Earning Their Hatred
That last piece perfectly illustrates the deranged support this president receives from the American Prava. ZERO constitutional justification is offered to legitimize Obama's actions in his appointments... the Senate was NOT in recess-- if you'll remember, the Senate did the same to Bush to prevent him from making recess appointments. Bush was not willing to thwart the Constitution, but Obama, acting like the king he believes he is, has no such qualms contravening what he views as a "charter of negative rights", the very 'charter' he swore to support and defend against all enemies, foreign or domestic. An oath he is in violation of, and not for the first time.
'Earning their hatred' appears to be the only reason for the article itself. The author's own reasoning-- to earn the heretofore unjustified hatred of his [the president's] detractors --is the only justification he offers, and the only justification leftists nationwide need to support their lawless president. The Left, it has been shown over and over and over again, does not care about constitutionality, or saving constitutional America. They care about 'fundamentally transforming America' into a welfare state, where everyone is dependent upon the state for its daily sustenance. That, readers, is not America... it's Cuba, its communist Russia... but it's certainly not America.
Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not "in session for the appointment of officers."
ReplyDeleteIn a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."
That was written by Steven G. Bradbury and John P. Elwood two attorneys from the Bush administration in October 2010 for the Washington Post.
If president Obama had made his recess appointments on January 1st, they would have had precedent as Teddy Roosevelt did much the same during his presidency between the end of the previous congressional session and the start of the next. However, because Pres. Obama was a day late then he is somehow destroying the purpose of the constitution?
The Constitution is pretty plain in that one of the Senate's responsibilities is to reject or accept the president's nominees to federal office. The president is likewise required to keep the executive branch appropriately staffed.
Senate Republicans thought they could unconstitutionally constrain the president's authority and responsibilities by refusing to follow their own constitutional duties. They couldn't prevent the CFPB from being enacted by a majority of the senators and representatives. They couldn't stop the president from signing the bill, but they could goddamn take power over the entire government by denying the senate from voting yea or nay over the president's qualified nominee for director.
Pres. Obama took a valid constitutional step. If the senate is not functioning, nor able to perform their duties then they are in recess.
If President Obama is re-elected and a minority of Senators decide to block votes on all the president's nominees to cabinet directors, wouldn't that be an unconstitutional act of nullification? How is this situation different in anything other than scale?
The senate was not in recess. It was in pro forma session. This tactic was used by democrats during the Bush administration to block Bush's recess appointments. Constitutionally speaking the president cannot appoint anyone, especially to a post that requires senate approval, to any office while the senate is in pro forma.
ReplyDeleteFurther, there is nothing unconstitutional about republicans, who are not bound by any constitutional element to do so, choosing not to vote for any of Obama's nominees. If the democrats can't muster enough votes, the appointment is thwarted. Period. Nothing unconstitutional about it whatsoever. Democrats thwarted Bush's nominees constantly by this very means. Republicans cried foul, but they respected the rules. Senate democrats today appear only to care about the rules when those rules prevent them from running rough-shod over the constitution, and the American people... Obamacare being a prime example.
Per the title of this post, it is Obama's contempt for the Constitution, and senate democrats hypocrisy that is at issue here.
Do I believe Obama acted unconstitutionally? Absolutely. Do I believe senate democrats (as well as house democrats) are hypocrites in this regard. Absolutely. And I'm not alone in this. But I'm not here to prove Obama is a criminal in this matter. He IS, however, a hypocrite, simply because he criticized Bush for much the same thing.
The 1905 memo doesn't hold the weight of law. It is an opinion. And opinions of this sort, throughout American history, have wreaked havoc on the social landscape. The so-called 'separation of church and state' issue (taken from a letter to the Danbury Baptist Church, by Jefferson) is a great example. According to the constitution government cannot abridge or establish religion (as Britain did in the Church of England). And yet religious liberties are abridged left and right by government today. Students in many locales aren't allowed to pray in Jesus' name during graduations or sporting events. And in some extreme examples, they're not even allowed to pray over their meals.
Anyone, be he judge or administrator, who tells students they can't pray at graduation, is in violation of the first amendment. By seeking to keep the 'establishment' clause, they violate the free exercise clause.
Dem NLRB ‘recess’ appointments rushed, don’t appear on White House nominee list
ReplyDelete"The two Democrats that President Barack Obama appointed to the National Labor Relations Board during what he considered a congressional “recess” are not on the White House’s official list of Obama’s appointments and nominations for various positions.
"Obama referred his two Democratic nominees, Sharon Block and Richard Griffin, to the Senate on Dec. 15. The Senate adjourned for the year – but did not go into an official recess — on the following day.
"WhiteHouse.gov tracks the status of all of Obama’s appointments and nominations. Block and Griffin do not appear on that list — a sign that the administration rushed the recess appointments through too quickly for the Senate to even consider them."
Again.... contempt for the process, contempt for the Constitution.
Anyone, be he judge or administrator, who tells students they can't pray at graduation, is in violation of the first amendment.
ReplyDeleteI believe the First Amendment says "Congress shall make no laws..."
I've never heard anything anywhere that a person of any age cannot pray anytime or any place of their choosing?
Can you provide any examples?
"I've never heard anything anywhere that a person of any age cannot pray anytime or any place of their choosing?
ReplyDeleteCan you provide any examples?"
A whole book of examples would be David Limbaugh's "Persecution", which came out around 2003. Not all that much has changed since it's publishing, as one would still be hard pressed to find a school that would allow a valedictorian to express how important Christ was to his/her success. Not long ago, such a case arose where at the first mention of Christ, the student's microphone was cut off. She had presented her speech as directed and told she could not proceed with it due to her desire to express her thanks to Christ. When she did anyway, they cut her off.
Most examples are indeed only cases where the law is misunderstood and misapplied, often to "play it safe". But it is all the result of the bullshit leftist distortion of Jefferson's meaning in his aforementioned letter.
one would still be hard pressed to find a school that would allow a valedictorian to express how important Christ was to his/her success
ReplyDeleteI'll bet she said a prayer to herself as she walked up to the podium to address the assembly. She may have even muttered "Jesus Christ" when her mic was cut.
Any other examples, because this is not an example of not being allowed to pray.
"Can you provide examples?"
ReplyDeleteI'm not going to spend all afternoon hunting them down simply because you haven't been paying attention to what's happening in this country, but here is one...
Far Left Judge Bans Prayer at Texas Graduation
Also... I second Marshall's suggestion of David Limbaugh's "Persecution." I own it, I've read it. And while the examples he cited near ten years ago are a bit shocking, things have only gotten worse since.
ReplyDeleteI'm not going to spend all afternoon hunting them down.
ReplyDeleteActually you would spend years and still be unsuccessful. Anyone can pray anytime, any place. Even your "far left" judge did not keep anyone from praying.
Jim plays semantic games. Of course there is no way anyone can truly prevent another from praying. But he thinks, apparently, that it is OK for gov't, judges or school administrators from public expressions of faith because, heck, they can still pray. This is dishonesty at its lefty best, and Jim shows why lefties can't be trusted.
ReplyDeleteBut groups of people are prohibited all the time from praying and the link Eric provided is but one example of it. Just because of one family, who get behind the lie that they would somehow suffer some kind of harm should the majority pray out loud, this idiot judge interfered where he has no constitutional right to do so. It is times like these that such rulings should be ignored, because arresting the whole student body, administration and the parents would not happen.
But Jim would side with the judge because he's no better at understanding the law or reality.
The religious separation issue is a red herring, because EL knows he's on shaky ground with his position on presidential recess appointments.
ReplyDelete"According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of December 8, 2011, President Barack Obama had made 28 recess appointments."
It's pretty clear that in the case of Obama's nominees to the CFPB and the NLRB that republicans in fact aren't "choosing not to vote for any of Obama's nominees." They are blocking the majority in the Senate from performing their constitutional duty of voting yeah or nay for the president's nominees. And not because of opposition to the nominees themselves, but instead they block the president's nominees because they object to Obama's administration's policies in those executive branch agencies.
The president ran for and won election on his policies. Senate republicans have used procedural motions to assert unconstitutional power over not only the majority of Senators in Congress but also over the power of the president in the executive branch. And that's what I call unconstitutional.
"because EL knows he's on shaky ground with his position..."
ReplyDeleteI don't know any such thing. But allow me to point out where you've erred.
Yes. Presidents do make recess appointments. Clinton made them, Bush 43 made them, Bush 41, Reagan.... a long list of "made them's".
But here's the difference. Bush did not make recess appointments when the senate was in pro forma.
From the Sacramento Bee...
Obama should fight the Senate on recess appointments, but not this way
The key point is this... quote... "The [democrats'] gambit worked - Bush made 171 recess appointments during his first six years in office, but he made none once Reid's initiative went into effect.
That initiative, gentlemen, was "regular pro forma sessions."
So, yes, Bush made recess appointments, but not as Obama has done. Obama has, dictatorially, by his actions, grabbed power from another branch of government, demonstrating his 'contempt' for the constitution.
The whole idea of recess appointments hales back to the time when congress was only in session a few months out of the year; when only the president was in Washington. If a vacancy came up that needed filling, the president needed a way to fill those vacancies. But those filled 'recess' vacancies had 'term' limits, in that the senate still had to confirm that individual if said individual was going to be in office more than 'x' number of days. So while recess appointment powers were necessary, there was no guarantee the president's appointee would be in position as long as the president would have desired.
As the article points out, Obama may have a legal leg to stand on... may... but he's opened a big kettle of fish, and if Reid doesn't get HIS act together, this precedent will cause all kinds of future constitutional problems.
Like liberal/progressives today, Obama only cares about the Constitution when it supports the programs he approves or desires, Ideologically speaking.
I'm sorry today presidential nominees can languish for 8 months or more before they are confirmed or rejected. That does not seem so different from delays of horse and buggy travel.
ReplyDeleteMost of today's delays in confirmation or rejection however, stem from procedural hurdles...anonymous holds, filibusters on motions to proceed, failure to report from committee, delays on votes, etc. These are not constitutional norms. They are the results of increasing partisanship where parties see their job as less to advance the business of the country and more to stop the opposing party.
I think the president should have wide latitude in appointing executive branch personnel. I also think that presidential appoints should not be able to be filibustered or stopped with anonymous holds. They also should receive quick up or down votes.
I like to think that if Pres. Bush had made recess appointments during the Senate pro forma sessions, I would have had the eloquence to state my opposition to his nominees without opposing his exercise of presidential power.
That's what it comes down to. These pro forma sessions if continued could prevent every future president from exercising their constitutional power to fill administrative vacancies. That certainly would be an unconstitutional power grab by the Senate.
Here's a quote from your linked article: "Since Ronald Reagan's presidency, administrations have had to contend with an average 25 percent vacancy rate in executive branch jobs. Reid's procedure threatened to increase senatorial veto power, creating a real crisis of government for Obama and all future presidents.
ReplyDeleteIn the present standoff, for example, Senate Republicans have not only filibustered Democratic efforts to push for a final vote on Obama's nomination of Richard Cordray as director of the new Consumer Financial Protection Bureau; 45 of them have said they would reject all other nominees for that position until the president agreed to fundamental changes in the Dodd-Frank law that organized the new bureau. If Obama can't respond to this Republican blockade with a recess appointment, he has no way to fulfill his constitutional responsibility to "take care that the laws be faithfully executed."
And of course this "unprecedented constitutional power grab" could be softened if Senate Republicans just let the full Senate vote on these nominees. But how likely do you think that is to happen?
"this "unprecedented constitutional power grab" could be softened if Senate Republicans just let the full Senate vote on these nominees. But how likely do you think that is to happen?"
ReplyDeleteAbout as likely as it was to happen when Bush wanted his nominees confirmed with a simple up or down vote.
Behold! The hypocrisy of the left! You folks can complain all you want, but you're equally culpable for your equally shoddy behavior in the past. What comes around, goes around...
Unfortunately.
And trust me (or not, as you like), I write this without a hint of smugness. Personally, I view it as a sad state of affairs for this present state of politics.
"I'm sorry today presidential nominees can languish for 8 months or more before they are confirmed or rejected. That does not seem so different from delays of horse and buggy travel."
ReplyDeleteI happen to agree with you.
"They are the results of increasing partisanship where parties see their job as less to advance the business of the country and more to stop the opposing party."
I agree with you... in part. It's not simply one party seeking to "stop" the opposing party; you've failed to qualify what you mean. It's natural for one ideological camp to want to thwart the actions of another ideological camp. This country is so polarized it will be impossible (for the foreseeable future) for genuine bipartisanship to occur. The president, who swore bipartisanship while campaigning, has in fact been the most polarizing president in recent memory. Sad, but true. So much hope was invested in Obama, but, unfortunately, he not He too was blinded by his own ideological mores.
"I think the president should have wide latitude in appointing executive branch personnel. I also think that presidential appoints should not be able to be filibustered..."
You say that now, but, should a Republican win the White House in November, and it comes to pass that he wants to nominate a devout Christian and strict anti-abortion/constitutionalist judge to the supreme court, I suspect you'll be singing a much different tune.
The filibuster is a legitimate tool provided for in the Constitution. Anonymous holds, however... I tend to agree with you.
"I like to think that if Pres. Bush had made recess appointments during the Senate pro forma sessions, I would have had the eloquence to state my opposition to his nominees without opposing his exercise of presidential power."
I'd like to think that too. But I don't. Sorry.
"That certainly would be an unconstitutional power grab by the Senate."
Perhaps/Agreed. But remember... Harry Reid started this business of 'pro forma to thwart recess appointments' during Bush's second term. Another senate may have done such in the past, but most recently, your culprit turns out to be a democrat. Remember. Democrats control the senate-- not republicans. And it was the democrats that set up the pro forma session that Obama bypassed. Democrats.
Remember. Democrats control the senate-- not republicans.
ReplyDeleteNo. They. Do. Not.
And it was the democrats that set up the pro forma session that Obama bypassed.
What are you talking about?
With the Cordray nomination, the Repuglicans have in effect forfeited their right to object to the appointment by admitting they have no intention of approving ANY nomination to the post.
The Repugs don't believe in democracy. The Consumer Protection Act was passed by both bodies of Congress and signed by the President. It is the law of the land. It sets up the protection organization and requires someone to lead it.
The Repugs refuse to carry out their Constitutional duty. Therefore they have no standing to complain about the President's appointment.
Wow! you comment totally reeks of hypocrisy! AND ignorance!
ReplyDelete1. The democrats DO control the senate. In case you hadn't noticed, Harry Reid (D) is the MAJORITY leader.
2. "The Repugs refuse to carry out their Constitutional duty..." Wow! Again... WOW! The senate hasn't passed a budget in more than two years! Constitutional duty no. 1... FAIL! MANY house bills since January last year have never seen the senate floor, let alone debate.... Constitutional duty no. 2.... FAIL!
And, hailing back to your assertion that Democrats "Do. Not." control the senate, the very fact that house bills are officially declared "dead upon arrival" in the senate by Reid himself.... you can't possibly be this stupid. I refuse to believe it.
Call republicans all the names you want... if that's all you got. I could easily call your side's feckless idiots, 'demoncrats,' but what would that prove? That I'm as petty as you?
Seriously? The democrats don't control the senate? Well, if that's true what does that say about Reid and his crew's ability to lead? Nothing good.... Par for the course as far as democrats are concerned.... No better than a frog in a blender..... Limp as milquetoast.
That's right, Harry Reid, the Milquetoast, intellectual defective.
The democrats DO control the senate
ReplyDeleteJane, you ignorant slut. Oops wrong person.
The Democrats only control the Senate when they have 60 votes. That is what constitutes a "majority" in the Senate when it comes time to vote. Democrats have only had 60 votes for 2 or three months and not since February of 2010. A 54 seat majority is not equivalent to a 60 vote majority.
If the Democrats controlled the Senate, there wouldn't be hundreds of Obama's nominees waiting for an up or down vote.
That's how you choose to respond? Really? By indirectly calling me an 'ignorant slut'? Seriously?
ReplyDeleteDemocrats control the senate. They control the agenda. They control what bills from the house make it to the floor for debate. Democrats control the senate, however you choose to parse it.
Trying to push the idea that they don't is dishonest (which is not surprising coming from a liberal), what you're really saying is 'we can't have everything we want because some evil repugs disagree with us, so we must not really control the house we're in charge of...' You KNOW democrats control the senate; that's why Harry Reid is called the "SENATE MAJORITY LEADER."
It doesn't matter if democrats can't get nominees to the floor, the simple TRUTH is democrats control the senate; they possess all the committee chairmanships and leadership roles.
Democrats did the same crap to Republicans when they controlled the Senate, and will do so again, when Republicans take it back this fall.
So you can't always get what you want... big deal... that's life. Stop being a crybaby!
The silence these last eleven days has been deafening.
ReplyDeleteBecause of Liberal Truth no. 8, I must chalk Jim's absence up to sickness... which is probably not very far from the truth.
Yada yada yada...
ReplyDeleteYou insult me post after post and you can't take a joke?
Democrats control the senate, however you choose to parse it.
Uh, then why are there hundreds of Obama nominees not confirmed, Jane?
Trying to push the idea that they [DO] is [ignorant](which is not surprising coming from a ["conservative"])
Crybaby? Who's complaining about the recess appointments?
Ignorant. Yes, it's what you are. Sad thing is, you willfully so.
ReplyDeleteSo that's it. You're done. I will, from this point on, delete each and every comment you make, whenever I see them.
You are incapable of civility. AND, had you simply been civil from the start (and no, for the ignoramus in you, I'm not referring to this post alone), none of this would have degenerated into what you now complain is UNcivil.
You philosophy is diseased, and I will excise it everywhere I find it.