Loose Canons

What Are You Prepared to Do?

How far will congressional Republicans retreat to avoid a confrontation with Barack Obama?

By 1.9.12

Send to Kindle

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?

Like this Article

Print this Article

Print Article
About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. You can follow him on Twitter @jedbabbin.