Obama’s Unconstitutional Executive Power Grab

At the White House last Thursday, President Barack Obama

announced his intention of re-nominating Richard Cordray to
head up the Consumer Financial Protection Agency, the federal
“watchdog” created to forbid “unfair, deceptive, or abusive”
financial practices as part of the Dodd-Frank Act. In January 2012,
stymied by Senate opposition to Cordray’s original nomination to
that position, Obama openly
bypassed the Senate and simply installed Cordray in power
himself. “He wasn’t allowed an up or down vote in the Senate,” the
president complained at the White House last week, “and as a
consequence, I took action to appoint him on my own.”Obama justified that one-sided action under his power to make
recess appointments. Under the Appointments Clause of the U.S.
Constitution, the president may make temporary appointments 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.”The problem here is that the Senate was not actually in recess
at the time of Cordray’s “recess” appointment, it was in a pro
forma session. Obama therefore had no legitimate authority
to install Cordray without first obtaining Senate confirmation as
required by Article II, Section 2 of the Constitution. It appears
the president ignored this inconvenient constitutional requirement
in order to expedite his preferred political outcome, or as Obama
himself put it, “I took action to appoint him on my own.”That disregard for the Constitution has now come back to haunt
the Obama administration. On Friday the United States Court of
Appeals for the District of Columbia Circuit issued a
scathing decision which nullified three other equally suspect
recess appointments made by Obama last year to the National Labor
Relations Board. According to the
majority opinion of Chief Judge David Sentelle, Obama’s
unilateral approach “would demolish the checks and balances
inherent in the advice-and-consent requirement, giving the
President free rein to appoint his desired nominees at any time he
pleases, whether that time be a weekend, lunch, or even when the
Senate is in session and he is merely displeased with its inaction.
This cannot be the law.”Indeed it cannot. To make matters worse for the White House, a
separate lawsuit is currently underway challenging the
constitutionality of Cordray’s recess appointment, which occurred
on the same day and under the same questionable circumstances as
the three NLRB appointments that have now been ruled to be
unconstitutional. Friday’s decision by the D.C. Circuit will only
add more legal force to this already strong case against the White
House’s executive overreach.Every president wants Congress to fall in line behind his agenda
and will complain bitterly if the legislative branch refuses to do
so. But that feeling of frustration is no excuse for the president
to trample on the separation of powers.


Obama’s Unconstitutional Executive Power Grab

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