American Elephants


The President is Playing Politics With The Constitution and the Law. by The Elephant's Child

Unable to allow Republicans to dominate the news with the Iowa Caucuses,  President Obama traveled to Shaker Heights, Ohio to give a speech at the high school, on the economy.  What made the news was not the soaring rhetoric, but the fact that the President of the United States announced his intention to act in total and utter disregard to the U.S.Constitution, which he solemnly swore to preserve, protect and defend. He said:

When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as President to act without them.

The President’s power over what are called “recess appointments” comes from Article II, section 2, of the Constitution, which grants him the authority “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.” As John Yoo points out,”the Senate adjourns for short periods of time, and the question becomes when does an “adjournment” become long enough to turn into a “recess?”

In the past Attorneys General and Presidents have thought that an adjournment would have to be longer than at least 10 days to become a “recess.” In the Founders’ day, it took a long time to get from Philadelphia to their home states and back by horseback, and it was pretty clear. The Senate is not officially in adjournment, but is holding “pro forma” meetings, where little or no business is conducted,  to prevent Obama from making exactly such appointments. This is a tactic that Harry Reid used to prevent George W. Bush from making “recess” appointments.

It is the Senate who decides whether or not they are in session,  it is not up to the President. He cannot decide the legitimacy of the actions of the Senate, nor can the Congress have the right to decide whether the President has thought long enough about granting a pardon. Separation of powers is an important and essential characteristic of our Constitution, and not only protects the authority of each branch of government, but acts as a brake on their actions.

Roger Pilon of the Cato Institute says that the president, under Article II, section 2, may make temporary recess appointments — but only when the Senate is in recess. Mr. Pilon said:

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.

He added: “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.

Richard Epstein adds that” within the framework of the current law, …it is for the Senate and not for the President to determine whether the Senate is in session. The usual view in all cases is that the internal rules of each institution govern its operations, and for the President to say that the Senate is not in session when the Senate says that is is, introduces a set of constitutional confrontations that we would be far better off doing without.”

Epstein questions the whole idea of “recess appointments,” though he agrees with John Yoo on the Constitution and the law.  It’s a thoughtful discussion.

The Supreme Court has held that the National Labor Relations Board cannot operate with only two members, so the question of legitimate appointments will not go away. Neither the President’s appointments to the NLRB nor his appointment of Richard Cordray to the Consumer Financial Protection Bureau will have any authority, so there will be more court cases. Anyone who disagrees with rulings by these people will be free to ignore them or to sue.

Press secretary Jay Carney said today that :

We hope to work with Congress to continue to take action on that to continue to grow the economy and create jobs. Separate from that, and this was the case last year and will be the case this year, we can’t wait for Congress to act.  And when Congress refuses to act, and Republicans choose the path of obstruction rather that cooperation, then the president is not going to sit here, this gridlock in Washington is not an excuse for inaction.

He’s going to take the actions that he can take using his executive authority to help the cause here, to help Americans deal with this challenging economy.  And they can be small, medium or large actions and they don’t have to be just executive authority actions.

If you pay attention to the President’s actions and not his rhetoric, it’s clear that he has no idea how to improve the unemployment situation. Business has pointed out that ObamaCare is the number one reason for business’ reluctance to hire. Obama has essentially shut down the energy sector and thousands of potential jobs because he is pursuing a green fantasy. His agencies cannot stop piling on regulations that make for an uncertain business climate. Our corporate taxes are the highest in the world. It’s no wonder that business looks to conducting their business where they are better treated.

The late Walter Wriston said it very clearly:

Capital will go where it is wanted and stay where it is well treated.  It will flee from manipulation or onerous regulation of its value or use and no government power can restrain it for long.

You might copy that off and send it to your Congressman or Occupy protester.


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