His Majesty has overstepped his bounderies. That is the inherent problem in surrounding yourself with lackys and “yes” men, such as Mr. Obama’s Justice Department. As a result, the president seems to believe that his power is limited only by his imagination. Every American should fear the consequences of such power if left unchecked. Fortunately, a U.S. Court – the D.C. Court of Appeals – has finally provided that check.
In an exceedingly well written, easily understood format (“Diminishing the Presidency”, WSJ, 1/31/13), John Loo, law professor at U.C. of Berkley, details how Mr. Obama, for short-term political advantage, has diminished the power of future presidents. One year ago, in his arrogance – and with the complicity of his Justice Department –Mr. Obama decided that the Constitutionally given right of the Senate to determine its own rules was inferior to his own power, declaring the Senate to be in recess, thereby allowing him to appoint three NLRB members and a head of the new Consumer Financial Protection Bureau. On Friday, 1/25/13, the D.C. Circuit Court of Appeals (ruling in Noel Canning v. NLRB)struck down all four appointments as an abuse of presidential authority.
In effect, the court has nullified a full year of rules crafted to aid union organizing and created more chaos in mortgage and credit card regulation. But more important, it affects the balance of power between the presidency and congress. Not only did the court nullify the appointments, but the majority opinion “rejects the very idea of ‘intra-session recess appointments”, an authority the Senate has allowed for 190 years. At question is the issue of when a vacancy “occurs.” The Constitution allows the president “to temporarily fill ‘vacancies that may happen during the recess of the Senate.” Literally speaking, the vacancy must actually occur during the recess. Past presidents have taken liberties to interpret “occur” as an ongoing event which extends into a Senate recess during which they fill a vacancy without the “advice and consent” provided for in the Constitution. They have also claimed that “a short Senate adjournment constituted a recess…”
Under the separation of powers deliberately designed into the Constitution, each branch of government makes its own set of rules. By its own rules, the Senate was in session when Mr. Obama illegally bypassed them with the four appointments. The president effectively “claimed the right to judge the legitimacy of the other branches’ proceedings – a seizure of power unheard of in American history.” Incredibly, the Justice Department not only argued that “the president could decide for himself whether the Senate was really in session” but, questioning their competence, whether it was “genuinely capable of exercising its constitutional function”, a question historically left to the voter.
Judge Sentelle, of the majority, further cited “more than one instance of executive overreach. “Mr. Obama has also distorted the Framers’ presidency into an instigator of domestic revolution, rather than as the protector of the national security and the enforcer of the laws.” The court further cited “another unprecedented exercise of executive power: Mr. Obama’s refusal to enforce laws …he dislikes”, an “abdication of a core constitutional responsibility (Article II, Section 3 “he shall take Care that the Laws be faithfully executed”) The Framers intended that, under their historic document framing our system of government “that Congress would exercise the primary power to legislate with regard to domestic affairs, and the president’s main power to restrain the legislature was with a veto.”
When appealed, the Supreme Court could decide to avoid a wider confrontation with the president by simply deciding whether the Senate was in session or not. But it could take a broader view of a presidency with a tendency to ignore the Constitution and undermining the constitutional authority of both the Congress and itself. Hopefully they will take the long view and quash the Obama vision of an imperial presidency.