It's a mistake to excuse Obama's disregard for the Constitution. Precedents set now will be exploited by the next administration.
By MICHAEL MCCONNELL
One reason so many Americans entrusted Barack Obama with the presidency was his pledge to correct the prior administration's tendency to push unilateral executive power beyond constitutional and customary limits.
Yet last week's recess appointments of
Richard Cordray as the first chief of the Consumer Financial Protection
Bureau and three new members to the President's National Labor
Relations Board—taken together with other aggressive and probably
unconstitutional executive actions—suggest that this president lacks a
proper respect for constitutional checks and balances.
The Obama administration has offered no considered legal defense for
the recess appointments. It even appears that it got no opinion from the
Office of Legal Counsel in advance of the action—a sure sign the
administration understood it was on shaky legal ground.
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. Several years ago—under the leadership of
Harry Reid and with the vote of then-Sen. Obama—the Senate 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 intrasession adjournments.
This administration must think the rules made to hamstring President
Bush do not apply to President Obama. But an essential bedrock of any
functioning democratic republic is that the same rules apply regardless
of who holds office.
It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.
President Obama alongside Richard Cordray, head of the Consumer Financial Protection Bureau, in Shaker Heights, Ohio, Jan. 4.
Moreover, in this case, two of the
recess appointees to the National Labor Relations Board had just been
nominated and sent to the Senate on Dec. 15—two days before the holiday.
So it is simply not true that they were victims of Republican
obstructionism, even if that mattered.
Some of the administration's supporters have tried to argue that the
pro forma sessions are a sham and thus that the Senate has been in
recess since Dec. 17. Aside from the fact that these sessions are not,
in fact, a sham—the Senate enacted the payroll tax holiday extension,
President Obama's leading legislative priority, on Dec. 23 during one of
those pro forma sessions—the plain language of the Constitution
precludes any such conclusion.
Article I, Section 5, Clause 4 requires the concurrence of the other
house to any adjournment of more than three days. The Senate did not
request, and the House did not agree to, any such adjournment. This
means that the Senate was not in adjournment according to the
Constitution (let alone in "recess," which requires a longer break).
Others have argued that the president can make recess appointments
during any adjournment, however brief, including the three days between
pro forma sessions. That cannot be right, because it would allow the
president free rein to avoid senatorial advice and consent, which is a
major structural feature of the Constitution. He could, for example,
make an appointment overnight, or during a lunch break. In a brief in
the Supreme Court in 2004, Harvard law professor Laurence Tribe
dismissed as "absurd" any suggestion that a period of "a fortnight, or a
weekend, or overnight" is a "recess" for purposes of the Recess
Appointments Clause.
This is not the first time this administration has asserted
unilateral executive power beyond past presidential practice and the
seeming letter of the Constitution. Its slender justification for going
to war in Libya without a congressional declaration persuaded almost no
one, and its evasion of the reporting requirements of the War Powers
Resolution—over the legal objections of Justice Department lawyers—was
even more brazen. According to the administration, not only was our
involvement in Libya not a "war" for constitutional purposes; it did not
even amount to "hostilities" that trigger a reporting requirement and a
60-day deadline for congressional authorization.
Indeed, the Obama administration has
admitted to a strategy of governing by executive order when it cannot
prevail through proper legislative channels. Rather than work with
Congress to get reasonable changes to President Bush's No Child Left
Behind education law, it has used an aggressive interpretation of its
waiver authority to substitute the president's favored policies for the
law passed by Congress. When the president's preferred cap-and-trade
legislation to limit carbon emissions failed in Congress, the
Environmental Protection Agency announced it would proceed by regulation
instead. And when Congress refused to enact "card check" legislation
doing away with secret ballots in union elections, the president's
National Labor Relations Board announced plans to impose the change by
administrative fiat—one of the reasons Senate Republicans have tried to
block appointments.
The English philosopher John Locke, who so influenced our Founding
Fathers, wrote that a "good prince" is more dangerous than a bad one
because the people are less vigilant to protect against the
aggrandizement of power when they perceive the ruler as beneficent.
I fear many Democrats are falling into this trap. They like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good.
I fear many Democrats are falling into this trap. They like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good.
Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution.
No comments:
Post a Comment