Wednesday, January 11, 2012

Obama’s imperial presidency

During the Bush presidency, the president was often accused by the left of acting unilaterally as an “imperial president.” It was charged that President Bush often ignored the will of the people and flouted the law with signing statements, acting more like a king than a president.

While the term has rarely been applied to President Obama, the current president’s actions have often been deserving of it. One of the most egregious examples of President Obama’s disregard for the rule of law and the Constitution was his decision to appoint three new members to the National Labor Relations Board and a head to the new Consumer Financial Protection Bureau last week. Obama styled the appointments as recess appointments although neither the House nor the Senate was in recess.

Article II section 2 clause 3 of the Constitution gives the president the power to fill vacancies that occur while the Senate is in recess. These recess appointments escape the immediate need to be confirmed by the Senate, but expire at the end of the next session of Congress.

Article I section 5 clause 4 states that neither house of Congress can adjourn for more than three days without the consent of the other. This is done by passing a resolution in both the House and the Senate. In this case, there is no disagreement that Congress was not formally recessed since neither the House nor the Senate had passed a resolution to end the session.

President Obama’s claim is that since Congress was not conducting business, he met the constitutional requirement. In the New York Times, White House counsel Kathryn Ruemmler said that “the Senate is functionally in recess,” even though neither house had passed a resolution to end the session as required by the Constitution. In fact, Congress acted on the president’s payroll tax bill only a few days before Christmas and had considered other legislation as well.

The recess appointments were a reaction to the failure of the Senate to confirm a number of Mr. Obama’s nominees including Richard Cordray, the nominee to lead the new consumer protection bureau. Republicans had filibustered Cordray’s nomination last month over opposition to the lack of oversight of the new agency. It is worth noting that President Bush declined to make recess appointments while Congress was in session even though Democrats had filibustered a large number of his nominees as well.

President Bush also took criticism for launching the wars in Afghanistan and Iraq, but he did so with congressional approval in both cases. In contrast, President Obama not only launched his Libyan war without consulting Congress, but he also claimed that the War Powers Act, which requires authorization from Congress when U.S. troops are in combat for more than 60 days, did not apply.

In the past, President Obama has also ignored Congress and the legislative process on other issues as well. A year ago the Atlanta Conservative Examiner detailed how two of President Obama’s agency heads bypassed Congress. The FCC enacted net neutrality rules as administrative law after a federal court ruled that the FCC did not have the authority to regulate the internet. At about the same time, the EPA began regulating carbon emissions in the same manner after Congress failed to pass a cap-and-trade law.

There have been other legislative power grabs by President Obama and his regulatory heads as well. In a well-known case, the National Labor Relations Board filed a complaint against Boeing because the aircraft manufacturer, which is unionized at its Washington State plants, planned to build a new factory in South Carolina, which is a right-to-work state. The complaint alleged that Boeing was illegally retaliating for strikes by workers in the Washington factories. There is no law preventing unionized companies from opening new locations in right-to-work states. The NLRB and the union withdrew the complaint last month after Boeing’s union workers approved a new contract.

In one case, the Obama administration’s disregard for the law played into the hands of its opponents. After the passage of the Affordable Care Act, better known as Obamacare, the Department of Health and Human Services began issuing waivers that allowed favored companies and unions to keep their current health care plans until 2014. According to The Hill, over 1,200 organizations received the waivers. The large numbers of groups requesting waivers allowed Republicans to claim that the health care law was expensive and unworkable.

The problem is the ACA did not authorize the government to grant waivers or deviations from the new health insurance requirements. According to the Daily Caller, the Department of Health and Human Services granted itself the waiver authority in an apparent violation of the law. The article cites Heritage Foundation health policy expert Edmund Haisimaier who noted, “I count twenty-one other sections of PPACA [Patient Protection and Affordable Care Act] in which Congress did grant HHS explicit, new waiver authority with respect to specific provisions. Thus, it is reasonable to presume that if Congress had intended the department to institute a waiver process as part of its implementation of this particular provision, Congress would have said so in the statute.”

Another recent revelation from the Obama White House is reminiscent of Marie Antoinette’s “let them eat cake” moment from the French Revolution. According to a new book, “The Obamas” by New York Times correspondent Jodi Kantor, during the height of the Great Recession in 2009, the Obamas threw a star studded Halloween party. The N.Y. Post reports that the party, put on by Johnny Depp and Tim Burton, coincided with the release of Burton’s film adaptation of “Alice in Wonderland.” In addition to Depp’s Mad Hatter, the party also featured George Lucas’s emissary, the original Chewbacca, mingling with guests. The party was apparently covered up by the White House amid concerns about how it would look amid a time of recession and high unemployment.

President Obama’s tenure has resulted in unprecedented expansion of the powers of the executive branch. His overreach should alarm liberals as well as conservatives because it is likely that his practices will be continued by future presidents of both parties. Americans have a right to expect better of a former professor of constitutional law.

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