Obama: I Am the Law

“The president is not going to negotiate with himself,” White
House spokesman Dan Pfeiffer insisted last week. As Tom Friedman,
The New York Times’ Maestro of Mixed Metaphors, might put
it, it’s hardball time, the clock is ticking, and the GOP had
better come to the table before we go over the fiscal cliff.
The good news for the Republicans is that President Obama is
probably overinterpreting his “mandate.” The bad news is, as Obama
has shown over the last four years, he’s willing to work his will
unilaterally and has nearly unprecedented powers to do so. Never
mind “negotiating with himself”; increasingly, this president won’t
even negotiate with Congress.
“We can’t wait for an increasingly dysfunctional Congress to do
its job,” Obama announced late last year. By “do its job” he
actually meant “agree with the president and pass laws authorizing
him to act.” He let loose with a flurry of executive orders—special
breaks for debt-addled students and homeowners, and unilateral
revision of immigration laws and welfare work requirements—all via
royal dispensation.
As part of that offensive, in January, Obama invoked the
Constitution’s recess appointments clause to fill several top
federal posts, including three members of the National Labor
Relations Board. On Friday, the U.S. Court of Appeals for the
Seventh Circuit heard oral arguments in the first of several
pending cases challenging that move.
The Constitution gives the president the power “to fill up all
vacancies that may happen during the recess of the Senate” by
granting temporary commissions. But that clause was an “auxiliary
method of appointment,” Alexander Hamilton explained in Federalist
67, designed for a situation where, say, the secretary of war drops
dead during one of the six-to-nine-month hiatuses common in early
Congresses. It was never meant to allow the president to routinely
bypass the Senate, ramming through top executive appointments
whenever the gavel drops for a momentary recess.
Obama isn’t the first president to abuse the clause to appoint
nominees that the Senate wouldn’t confirm. He is, however, the
first to invoke the power when the Senate was—according to its own
rules—actually in session. The White House called the “pro forma”
sessions adopted by then-Senate Majority Leader Harry Reid “a
procedural trick” aimed at unjustly stifling his ability to bypass
Senate confirmation.
Forty-two Senate Republicans have signed an amicus brief in
another challenge to Obama’s recess appointments pending before the
D.C. Circuit. The author of the brief is Miguel Estrada, who
earlier withdrew his nomination for a federal judgeship when Senate
Democrats delayed his confirmation for two years.
If the president has the power to decide when the Senate is
“really” open for business, Estrada points out, he could do the
same “whenever the chamber does not swiftly rubber-stamp his
nominees.” He could declare “the Senate ‘unavailable’ to approve
appointments because it is preoccupied with other business” or
paralyzed by “partisan divisions.” He could thereby fill any
federal office he chose for up to two years at a time without the
inconvenience of the Senate’s constitutional consent. The power the
president imagines, Estrada writes, would “severely undermine the
separation of powers.”
Ignoring those considerations, at the time, the Washington
Post editorial board called Obama’s gambit “a justifiable
power grab.” In a similar vein, last month, the New Republic ran a
piece helpfully (and brazenly) titled “Eight Ways Obama Can Jam
Through His Agenda Without Congress.” (Recess appointments are on
the list.)
The liberal press is apparently uninterested in the rule of law
and the separation of powers. Let’s hope those principles have
better defenders in Congress and the courts.
This article was
originally published in The Washington Examiner.

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Obama: I Am the Law

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