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This editorial in the Wall Street Journal summarizes very well the facts of Obama’s attempt to circumvent the Constitution yesterday: Contempt for Congress.
A President has the power to make a recess appointment, and we’ve supported Mr. Obama’s right to do so. The Constitutional catch is that Congress must be in recess.
The last clause of Section 5 of Article 1 of the Constitution says that “Neither House” of Congress can adjourn for more than three days “without the Consent of the other” house. In this case, the House of Representatives had not formally consented to Senate adjournment. It’s true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let’s hear Mr. Obama’s legal justification.
Democrats had used a similar process to try to thwart Mr. Bush’s recess appointments late in his term when they controlled both the House and the Senate. Prodded by West Virginia’s Robert C. Byrd, who has since died, Majority Leader Harry Reid kept the Senate in pro forma session. Some advisers urged Mr. Bush to ignore the Senate and make recess appointments anyway, but he declined. Now Mr. Reid is supporting Mr. Obama’s decision to make an end run around a Senate practice that he pioneered. [emphasis in original]
In other words, the Constitution is plain and Obama is consciously ignoring it, unlike Bush or any previous President. You can make excuses for this arrogant and unprecedented abuse of power, but an abuse of power it is, nonetheless.
As for sitting back and waiting for the courts to settle this, that’s a cop-out. The courts will almost certainly bow out, noting that this is a political battle between two other branches of government. The article above does note who will sue:
Private parties will have standing to sue if they are affected by one of Mr. Cordray’s rule-makings, and that’s when the courts may get a say on Mr. Obama’s contempt for Congress.
Thus, Obama’s actions will make any actions by his appointee legally suspect. It will create chaos in government and business, while simultaneously eroding the rule of law.
Is this the kind of government representation we want?