Friday, January 6, 2012

Obama Blatantly Violates A Broken Constitutional Process

[The President] shall have Power, by and with the Advice and Consent of the Senate, to . . . appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .

The President shall have Power 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.

U.S. Constitution, Art. II, Sec. II.

The other day, the President unilaterally appointed former Democratic Ohio attorney general Richard Cordray to the new Consumer Financial Protection Bureau and, further, appointed three people to the NLRB. In doing so, Obama bypassed the Senate's right to provide "advice and consent" to the appointments, and Obama made the appointments while the Senate was still in session. Obama's actions are outrageous. As Constitutional experts John Yoo from the right and Richard Epstein from the left agree, Obama's action violate the plain language of the Constitution. As Roger Pilon sums this up at Cato:

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.

This highlights a systemic problem with the whole recess appointment / advise and consent process. One, the President's powers of recess appointment are an anachronism. When this clause was approved in 1787, Congressmen traveled about on horse and in buggies. Congressional recesses could last several months. Today, the reality is that recesses rarely last even a month, and in an emergency, Congress could be reconvened in a day. There is no justification for the recess appointment power today. Its only use is to get around the Constitutional requirement that the Senate consent to the Presidential appointment. That was never its intended purpose.

That said, if there are to be no more recess appointments, then it behooves the Senate to stop filibustering Presidential appointments and give them an up or down vote. The Senate's use of the filibuster to prevent an up or down vote is, in its own way, as much a violation the spirit of the duty to "advise and consent" as is the President's use of recess power to go around the Constitutional duty to receive Senate consent. The current system promotes only gridlock and excessive politicization. Changes to both the recess power and Senate treatment of nominees would lead to a much better and more democratic system.

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