Jan 27 2013

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Consequences for Executive Overreach

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Constant - Not Pliable on Exigency

It was not so long ago that “executive overreach” was all the rage of Washington, with Democrats and pundits lining up to denounce the blatant “power grabs” of the “imperial” Bush administration with its policies on wartime detention, warrantless wire-tapping and signing statements.

A chief antagonist at the time was then a young and promising Senator from Illinois.

How quaint it all looks today.

Perhaps no issue has been more consequential, but less reported on over the last four years, than the drastically changed balance of power in Washington, as the Obama administration has vigorously – even audaciously – sought to expand executive authority at the expense of Congress and the Courts.

Unable to move its agenda through Congress, the Obama administration has sought to implement change through a number of unilateral avenues.

For instance, the EPA has been using the Clean Air Act to impose by agency fiat controversial policy regulations that could not pass Congress through Cap N’ Trade legislation.

Instead of working with Congress on reforms to the Bush era No Child Left Behind law, the Education department has been aggressively using its waiver authority to substitute the President’s favored policies for the law passed by a duly elected Congress.

And when Congress refused to enact “card check” legislation, doing away with the secret ballot in union elections, the National Labor Relations Board (NLRB) announced it would impose the change by administrative fiat.

The Obama administration has also taken more constitutionally consequential action; choosing to selectively enforce immigration law and refusing to defend the duly passed Defense of Marriage Act, signed into law by President Clinton. The administration also refused to comply with the decades-old War Powers resolution and officially notify Congress when US military forces were sent into combat, supporting NATO during the Libyan humanitarian intervention; though the President was – ironically – at pains to gain the support of the UN for the operation.

As a foundational principle, Article I, Section 3 of the Constitution requires that the president “take Care that the Laws be faithfully executed.” It does not confer upon a president the discretion to refuse to carry out a congressional statute simply because the president believes it advances the wrong policy.

But it was in POTUS’s most extraordinary assertion of executive authority that the courts have finally moved to reign in the President.

During the final Bush years, the Senate – under the leadership of Harry Reid and with the vote of then-Sen. Obama – adopted a practice of holding “pro forma” sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intra-session adjournments.

Now residing in the White House, President Obama turned that policy on its head on January 4, 2012, when he made four “recess” appointments – even though the Senate was in pro forma session and not in recess. In so doing, POTUS effectively bypassed the Senate to appoint three new members of the National Labor Relations Board, NLRB as well as naming Richard Corday as head of the newly created Consumer Finance Protection Bureau (CFPB), all very controversial and politically sensitive appointments..

By taking this action, President Obama was effectively dictating to the Senate when the body would be in recess or adjournment, directly infringing upon Congress’ constitutional power and diluting federal checks and balances in favor of the Executive.

According to former federal judge Michael McConnell:

It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Article I, Section 5, Clause 4 sets out the requirements for adjournment and requires the concurrence of the other house to any adjournment of Congress for more than three days. In this case the Senate did not request, and the House did not agree to, any such adjournment…which means that the Senate was not in adjournment according to the Constitution…let alone in “recess,” which requires a longer break.”

Some Administration supporters, now safely ensconced in the Executive Branch and with short memories, have changed their tune and argued that the pro forma sessions, so effectively employed against Bush, were now in fact, a sham. However, during these purported “sham sessions” the Senate enacted a payroll tax holiday extension – President Obama’s leading legislative priority – on Dec. 23. Hardly the action of a rump body.

On Friday, the US Court of Appeals agreed, ruling that President Barack Obama violated the Constitution when he made those recess appointments, saying in part, “As the Supreme Court observed, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.”

To no one’s surprise, the White House all but dismissed the ruling, arguing that the appointments were valid and would be upheld in future, higher court review. Despite the Administration’s confidence, it would appear that the imbalance in power created by aggressive Obama administration actions during POUTS’ first term have triggered a reaction that will have consequences not only for this president, but for all his successors to come, not all of them pleasant or constructive.



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