American Elephants


Obama’s Unconstitutional Abuse of Power: by The Elephant's Child

President Obama has increasingly shown contempt for the constitutional limits on executive power, for Obama is a full-fledged relativist. A thoroughly modern man who is distinguished by the absence of “rigid” opinion and moral values. The Constitution which he took an oath to preserve and protect, should be updated to conform to more modern times. After all we are just one nation among many, no better, no worse, and certainly not exceptional.

Back on January 4, 2012,  Mr Obama bypassed the Senate’s constitutional advise and consent power by naming three new members to the National Labor Relations Board, and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Many Presidents have made recess appointments and we have supported that executive authority.  So what difference, at this point, does it make?

The problem was that when Obama consciously made those “recess” appointments when the Senate wasn’t in recess but was conducting pro-forma sessions precisely so that Mr. Obama could not make a recess appointment. No president had ever tried that one before.

In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a NLRB board decision on the grounds that the recess appointments were invalid and the NLRB lacked the three-member quorum required to conduct business. A three-judge panel of the D.C. Circuit agreed, and briskly slapped down the White House about the separation of powers.

The opinion was 46 pages, and the three-judge panel said that “not only logic and language, but also constitutional history” reject the President’s attempt to go around the law. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress. It is a constitutional relic of a time when Congress would break for several months at a time, and lawmakers could not hop on a plane to get back to the capitol.  It was meant as a stopgap for times when the Senate was unable to provide advice and consent, not as an exception to the rule.

The court cleared the air by noting that the Constitution refers not to “a recess” but to “the recess,” and an adjournment. The administration was trying to turn a power to make emergency appointments during a formal recess of Congress into a free-wheeling power to make appointments during any adjournment.

The ruling will invalidate everything done by the two agencies. Many agencies have bypassed  normal congressional approval, without making their action into a good case for the Supreme Court.  Lots of people have been harmed by determinations and orders from the NLRB and the CFPB, and they will head to court. The Administration will appeal to the Supreme Court. There will be arguments that the D.C. Circuit did not have jurisdiction, but the court persuasively found that it did. Going to be interesting. Tim Carney made noises about judicial overreach, and huffed and puffed, but that’s what Obama pays him for.




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