Obama’s Tyrannical Abuse of Power
By Mike Brownfield
Heritage.org
Standing behind a podium on a stage just outside
Cleveland, President Barack Obama delivered a speech
yesterday that will reverberate throughout history.
No, its lasting impact will not come because of its
soaring rhetoric. Instead, it will make its mark
because it was at that moment on a Wednesday
afternoon in Ohio that the President announced his
plans to act in total and utter disregard of the
U.S. Constitution
with his illegal appointment of Richard Cordray to
serve as director of the Consumer Financial
Protection Bureau (CFPB).
It’s an astonishingly reckless exercise of executive
authority that Heritage’s Todd Gaziano
described
as a “tyrannical abuse of power.” Never before in
the 100-plus years of precedent on the recess
appointment power has a President taken such an
action while the Senate was still in session. Yet
notwithstanding that fact, President Obama yesterday
decided that he would be the first.
Here’s why the President finds himself so far
outside of constitutional bounds. Under Article II,
section 2, clause 2 of the
Constitution,
the President has the power to fill vacancies that
may happen during Senate recesses, as Gaziano
writes.
In this case, President Obama was seeking to fill
the vacancy in the CFPB, a new agency that has come
under
significant criticism
given its
unparalleled powers
to issue expansive regulations with virtually no
accountability. Republicans in the Senate, to date,
have refused to confirm the President’s nominees to
head up the CFPB, vowing to block Senate approval
until reforms are made
to the agency. So President Obama has decided to act
without their approval by attempting to make a
recess appointment. The trouble is that Congress is
not in a recess because the House of
Representatives never consented, as required under
the Constitution, Article I, section 5. That means
that the President simply does not have the power to
make this appointment. Gaziano
explains
the implications of the President’s actions:
[The recess appointment] power has been interpreted
by scores of attorneys general and their designees
in the Department of Justice Office of Legal Counsel
for over 100 years to require an official, legal
Senate recess of at least 10-25 days of duration.
(There are a few outlier opinions, never sanctioned
by the courts, that suggest a recess of six to seven
days might be enough–but never less than that.)
The President’s purported recess appointment of
Cordray would render the Senate’s advice and consent
role to normal appointments almost meaningless. It
is a grave constitutional wrong that Senator Mitch
McConnell (R-KY) has already denounced. But it fits
a pattern of extra-constitutional abuse by the White
House that seems more interested in energizing a
liberal base than safeguarding the office of the
presidency.
Why take such action? The President says it’s
because he can’t wait for Congress to act on behalf
of the American people. The truth is that the
President is hell bent on ramming through his
agenda, and he is entirely unwilling to compromise
with the duly elected representatives who sit in the
House and Senate. By circumventing the Senate and
appointing Cordray, the President can ensure that
his big-government regulatory agenda is enacted
without the reforms that Congress is demanding.
Unfortunately, the Cordray appointment is not the
only example of the President’s wanton, unilateral
actions.
Apart from Cordray, the President also plans to
make three appointments
to the National Labor Relations Board without Senate
approval, which will fundamentally alter the makeup
of the board and enable the President to realize his
Big Labor agenda. That means an unrestrained push to
unionize businesses at all costs and punish
companies that seek to grow in non-union states (as
was attempted in the Boeing case) — even if it means
harming both workers and the economy. And in the
case of environmental regulations, immigration law,
No Child Left Behind, the auto
bailout, the
selective enforcement of voting rights laws, and the
regulation of the Internet (among others), the Obama
Administration has in fact enacted its agenda via
legislative fiat time and time again.
In an
interview last month
with 60 Minutes,
the President gave warning of his intentions to
preside over an imperial presidency for the next
year. “What I’m not gonna do is wait for Congress,”
he said. “So wherever we have an opportunity and I
have the executive authority to go ahead and get
some things done, we’re just gonna go ahead and do ‘em.”
The President now, though, seems to have made a
significant course correction. With these latest
illegal, unconstitutional appointments, the
President has jumped at an opportunity to act
regardless of the fact that he has no executive
authority to do it. And under his feet is a trampled
Constitution and 100 years of precedent for which he
has no use. It’s time for Congress and the American
people to take a stand against President Obama’s
abuse of power.