President Obama has made clear his path to re-election. He plans
to run against Congress and — by seizing unconstitutional powers
— go about governing this year with or without the legislative
action required by the Constitution. He’ll issue executive orders,
have his bureaucracy regulate as may please his ideology, and
generally do whatever else he can get away with.
Obama apparently thinks he can get away with a lot, and
judging by the response of the Republican congressional leaders to
his actions last week, he’s probably right.
Obama took constitutionally-irreconcilable actions last
Wednesday by making four “recess appointments,” three to the
National Labor Relations Board and one to the new Consumer
Financial Protection Bureau, a regulatory monstrosity created by
the ill-conceived Dodd-Frank financial “reform” act.
Obama announced the four “recess appointments” purporting
to exercise his power to do so under Article 2, Section 2 of the
Constitution. But — according to Article 1, Section 5 — the
Senate was not in recess because it hadn’t obtained permission from
the House to adjourn for more than three days and because the
Senate was in de facto session. (This is the same
congressional maneuver that Harry Reid and Nancy Pelosi repeatedly
used to prevent George Bush from making recess
appointments.)
The difference is that Bush obeyed the Constitutional
limits and Obama flaunts his violation of them.
The question for congressional Republicans is that which
the Sean Connery character, Malone, asked Kevin Costner’s Elliot
Ness in The Untouchables: what are you prepared to do? The
unfortunate answer is that congressional Republicans aren’t
prepared to do what is necessary to rein in a president who is
behaving as if he were the imperial president the media shiver
about whenever a Republican is in office.
Who is going to take the necessary actions to void Obama’s
appointments?
The courts can’t on their own, because they have no power
to bring cases up themselves and adjudicate them to their own
satisfaction.
The House and the Senate each have the power — and the
duty — to block or overturn a president’s unconstitutional
action.
The House’s only real power is the power of the purse. It
can cut off funding for anything it wants to stop the Executive
Branch from doing. But it can’t and won’t because its leadership
lacks the courage to stand their ground after the first whiff of
the grapeshot.
The payroll tax cut debacle is only the latest evidence.
Republicans didn’t want to discontinue the cut. They only wanted to
prevent paying for it by tax hikes. Speaker Boehner decided to take
a firm stand against such tax hikes and make an issue of it. But
when it came down to the wire, he made a deal and then couldn’t get
his membership to back it.
House Republicans could clearly bar any funding for NLRB’s
and CPFB’s activities. But the White House and Senate Dems will
include that funding in yet another “must pass” bill, such as
another debt ceiling hike or a “continuing resolution” that funds
the whole government.
There will be another Obama-manufactured crisis. The House
Repubs will have to threaten to shut down the government and
actually do it in order to stop these activities. But they so fear
the blame for a shutdown, they’ll cave again. And again, and
again.
The courts could overturn Obama’s illegal “recess
appointments” but before a case can come before the courts, our
legal system imposes a couple of requirements. First, that there is
one: a “case or controversy” over which the court has jurisdiction.
This excludes purely political questions, but also clearly includes
questions of whether an Executive Action is unconstitutional. The
second is that the party bringing the suit has “standing to sue.”
That means if ol’ drunk Joe bashes his pickup into your car, I
can’t sue for damages because I can’t sue for damages to a car I
don’t own.
Which leaves us with the question of whose car was wrecked
by Obama’s careening “recess appointments” truck? Companies who are
subjected to the CPFB regulations could, but only after the regs
are issued and their damaging effects can be proved in court. Until
then, only the Senate Republicans whose constitutional authority
was damaged can act. And that’s the problem.
We’ve seen it so many times over the past three years it’s
almost a cliché. Obama challenges the Republicans to refuse him
something, whether it’s the debt ceiling hikes or the most recent
meltdown over continuing the payroll tax reduction. Barry demands,
the Republicans refuse, and Barry goes to the mattresses. The
Republicans back down, completely cowed by the thought of taking
responsibility for a government shutdown or a continuing “crisis”
of Obama’s invention.
They did this on the debt ceiling in such a manner that
the so-called “supercommittee” was established to paper over their
utter failure to obtain federal spending cuts. The
“supercommittee,” as I wrote at the time and since, was played up
as a game of Russian roulette with the Dems: no one could afford it
to fail. But if you read the fine print, they were playing with an
unloaded pistol. The “sequestration” cuts would not touch
entitlement programs (where the money is) and wouldn’t take effect
until 2013, giving our Hearts of Oak another year to weasel their
way out of it.
And now there’s no way out. Obama has cut off the escape
routes by taking an unconstitutional action that had an immediate
effect and cannot be allowed to stand.
The unconstitutional appointments satisfy the “case or
controversy” requirement. To invalidate those appointments and
require the people appointed to give up their offices is an
immediate, and clear, issue for the courts. Unfortunately, the only
people who have standing to sue right now are the members of the
Senate whose constitutional power of “advice and consent” on
appointments was violated.
What are they prepared to do? Not much.
Even the strongest among them — such as Alabama’s Jeff
Sessions, Oklahoma’s Tom Coburn, Florida’s Marco Rubio, and a few
others — won’t be able to sue because they’d have to get agreement
among their colleagues to join in the suit and there are too many
weaklings among them.
Those Senate Republicans should consider carefully their
path of inaction. Obama won’t stop until someone takes legislative
or legal action — or both — to stop him. The mind boggles at the
things he could try to do.
What if he decided to assert Congress’s power to
appropriate money? Congress authorizes and appropriates within
specific categories. The White House can’t move money between
accounts without congressional action. But who’s to stop Obama from
moving more money from one part of the Department of Energy to
another to fund the next Solyndra?
Will anyone stop Obama’s Treasury or the Fed from propping
up the euro? What if Obama tries to violate Article 6 of the
Constitution, as some phony “constitutional scholars” were
advocating last year, by borrowing above the debt ceiling without
legislative authority by virtue of their willful misreading of
Article 6?
We now know Obama is willing to exercise unconstitutional
power. The only unanswered question is whether congressional
Republicans can rediscover their courage and push back.
Since the Nixon administration, whenever a Republican
president tried to exercise his constitutional powers, the
Democrats and their amen chorus in the media have been in full cry
about the dangers of the “imperial presidency.” Now we really have
one and they are, predictably, compliant.
It’s up to the Republican leaders in the House and Senate
to restrain our imperious president. What, gentlemen, are you
prepared to do?
