Obama Administration

Obama: I Am the Law

Let's hope separation of powers and the rule of law have better defenders in Congress and the courts.

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"The president is not going to negotiate with himself," White House spokesman Dan Pfeiffer insisted last week. As Tom Friedman, The New York Times' Maestro of Mixed Metaphors, might put it, it's hardball time, the clock is ticking, and the GOP had better come to the table before we go over the fiscal cliff.

The good news for the Republicans is that President Obama is probably overinterpreting his "mandate." The bad news is, as Obama has shown over the last four years, he's willing to work his will unilaterally and has nearly unprecedented powers to do so. Never mind "negotiating with himself"; increasingly, this president won't even negotiate with Congress.

"We can't wait for an increasingly dysfunctional Congress to do its job," Obama announced late last year. By "do its job" he actually meant "agree with the president and pass laws authorizing him to act." He let loose with a flurry of executive orders—special breaks for debt-addled students and homeowners, and unilateral revision of immigration laws and welfare work requirements—all via royal dispensation.

As part of that offensive, in January, Obama invoked the Constitution's recess appointments clause to fill several top federal posts, including three members of the National Labor Relations Board. On Friday, the U.S. Court of Appeals for the Seventh Circuit heard oral arguments in the first of several pending cases challenging that move.

The Constitution gives the president the power "to fill up all vacancies that may happen during the recess of the Senate" by granting temporary commissions. But that clause was an "auxiliary method of appointment," Alexander Hamilton explained in Federalist 67, designed for a situation where, say, the secretary of war drops dead during one of the six-to-nine-month hiatuses common in early Congresses. It was never meant to allow the president to routinely bypass the Senate, ramming through top executive appointments whenever the gavel drops for a momentary recess.

Obama isn't the first president to abuse the clause to appoint nominees that the Senate wouldn't confirm. He is, however, the first to invoke the power when the Senate was—according to its own rules—actually in session. The White House called the "pro forma" sessions adopted by then-Senate Majority Leader Harry Reid "a procedural trick" aimed at unjustly stifling his ability to bypass Senate confirmation.

Forty-two Senate Republicans have signed an amicus brief in another challenge to Obama's recess appointments pending before the D.C. Circuit. The author of the brief is Miguel Estrada, who earlier withdrew his nomination for a federal judgeship when Senate Democrats delayed his confirmation for two years.

If the president has the power to decide when the Senate is "really" open for business, Estrada points out, he could do the same "whenever the chamber does not swiftly rubber-stamp his nominees." He could declare "the Senate 'unavailable' to approve appointments because it is preoccupied with other business" or paralyzed by "partisan divisions." He could thereby fill any federal office he chose for up to two years at a time without the inconvenience of the Senate's constitutional consent. The power the president imagines, Estrada writes, would "severely undermine the separation of powers."

Ignoring those considerations, at the time, the Washington Post editorial board called Obama's gambit "a justifiable power grab." In a similar vein, last month, the New Republic ran a piece helpfully (and brazenly) titled "Eight Ways Obama Can Jam Through His Agenda Without Congress." (Recess appointments are on the list.)

The liberal press is apparently uninterested in the rule of law and the separation of powers. Let's hope those principles have better defenders in Congress and the courts.

This article was originally published in The Washington Examiner.

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  1. I was wondering at the mechanics of this. At my company, you don’t get put on rolls without alllll the approvals, paperwork, etc. in place. Were I the gummint HR Associate….”Appointed during a time the Senate was NOT in fact in recess? Then you don’t get put on the payroll. You can work, but it’s gonna be for free till it’s done right.”

    “Tsar? Czar? Ain’t got no ‘Czar’ classification. Can’t put you on the payroll till the House of Representin’ approves that position….you’re free to work for no pay of course…’FREE to work for no pay’ – HAHAHA!”

    That would solve a lot of this….

    1. No it wouldn’t. The six-figure salaries are just a perk to most of these asshats. They know they’ll make more in 4 years once they can openly peddle their influence anyway. Not to mention in-office bribery, taxpayer-funded expense accounts, all the lobbyist-paid lunches and dinners you can eat, etc.

    2. I think the GSA sets the pay and such? They would plod along and do whatever the Pezzydent said to do. Make waves? Show initiative? Wrong office, pal – try down the hall.

    1. Poor Russell; all those hours producing his childish parody site, and nobody clicks on the links!

      Won’t somebody notice him? Won’t somebody pat him on the head and tell him he matters? Does no one care about his self-esteem?

      Poor, poor Russell…

      1. “Social promotion” in public schools to blame?

      2. It’s too bad. I rather liked his previous blog, Adamant, assuming it’s the same Dr. Seitz. The good doctor was usually reliable in those posts for a couple of multi-lingual puns or references to medieval texts, all of which would have me scurrying to a search engine to figure out just what the hell he was trying to say. Great fun.

        Now? Jeez, you have greater than 90% of the scientific establishment on your side, and you have to resort to the website equivalent of phishing? I guess it’s supposed to be funny? I don’t think it’s even a good parody. (The doubled VVs did catch me the first time he linked to it, and I was wondering for a few seconds why Watts did a complete 180.)

  2. You should be arrested for assault to my eyeballs for that picture.

  3. This would seem to be appropriate here. I might just sign this one. For the lulz.

  4. The liberal press is apparently uninterested in the rule of law and the separation of powers.

    *shocked face*

    1. Well, when Team BLUE controls the throne, the Dem Op media’s disinterest goes without saying.

  5. Theoretically, the House holds the power of the purse and has the ability to put an end to this shit. In practice, they’ve abdicated that authority by authorizing automatic spending increases in case a budget isn’t passed and allowing the US to go on a fiat currency in lieu of official tax increases.

    1. I wish the House would go rogue–and by rogue I mean exercise its constitutional powers–and stop the madness in its tracks. Sure, that might have political consequences, but I think a large number of Americans would like to see someone in DC act like a rational adult for a change.

      1. I think a large number of Americans would like to see someone in DC act like a rational adult for a change.

        Unfortunately far too many of those Americans define “rational adult” as someone who just does whatever the Dear Leader wants.

        1. Perhaps. Nothing is to be gained by catering to the suicidal, though.

      2. I wish the House would go rogue–and by rogue I mean exercise its constitutional powers–and stop the madness in its tracks.

        What exactly is it that you would like them to do? That’s a completely serious question. Impeach him? It’s fully deserved of course, but it will just be a giant waste of time and not accomplish anything. So what else is there?

        1. Pass spending cuts, with no increases in taxes. Refuse to pass bills expanding government spending or power. Overturn existing boondoggles. That sort of thing

          1. Oh, OK. I thought we were talking about his flurry of executive orders and unconsitutional recess appointments.

            1. I’m growing a bit monomaniacal on the topic, aren’t I?

              Ideally, Congress would assert its powers across the board to restore balance to the Constitution.

  6. Yep, the phony “nice guy” mask is coming off now. For good. Just like those of us who are clued in predicted. Have a nice day, enjoy the next four years everyone!

    1. Remember during the campaign, when Obama had his idiot Hollywood fans write their “favorite reason” for supporting Obama on the back of their hands, and then display it by putting their hands over their hearts? Kinda like a Fascist salute?

      Seems oddly fitting now, doesn’t it?

      1. It has seemed oddly fitting for some time now.

      2. Somehow I totally missed that, and I’m kind of glad that I did. These people are unreal.

      3. It seems like a good time to remind everyone that Scarlett Johansson is a pretty airhead.

        OTHER’D!

      4. Remember during the campaign, when Obama had his idiot Hollywood fans write their “favorite reason” for supporting Obama on the back of their hands, and then display it by putting their hands over their hearts?

        A veritable parade of punchable faces!

  7. Jesus fucking christ. It just gets worse and worse with this guy. There really is no authoritarian bridge too far for him.

  8. L’alt text m’a fait RAE

  9. Correction:

    “The liberal press is apparently uninterested in the rule of law and the separation of powers unless a Republican returns to office.”

  10. “We can’t wait for an increasingly dysfunctional Congress to do its job,”

    I say fuck the american voter. They (we) are about to get what they asked for good and hard.

  11. by rogue I mean exercise its constitutional powers

  12. Huh.

    by rogue I mean exercise its constitutional powers

    SUICIDE PACT, FTW

    1. The suicide pact is the usurpation of constitutional powers by a succession of governments, not the Constitution.

  13. I went to high school with this guy, and he had near genius level intelligence, runs his own successful business, and adores the Cleveland Steamer’s the Democratic propaganda machine dumps on his chest daily.

    So here is his latest facebook status:

    Despite believing in things like food stamps and free public education, I’m a big fan of the 2nd amendment. The Bush administration was a scary scary time. Once our government starts torturing people, its not a stretch to imagine Dick Cheney ordering SEAL teams to round up anyone he doesn’t like (liberals, intellectuals, game designers). When that happens, the 5th Amendment isn’t going to save me, but the 2nd Amendment might.

    This is why we need the 2nd Amendment. Not because we need to hunt deer, or we need to defend our home from hoodlums. In this regard I’m less worried about handgun laws than I am about the actual military weapons you might use to defend yourself from tyranny.

    At the time the 2nd Amendment was written, rifles were the best available technology for fighting a war or defending yourself from the King. And the 2nd Amendment ensured that every American had the right to “bear” this technology.

    1. Does that mean that the 2nd Amendment should give 21st century Americans the right to own: rocket-propelled grenades, heat-seeking missiles, nuclear weapons? Seems to me like it does. And if it does, and we think that’s crazy, then shouldn’t we repeal the 2nd amendment and replace it with something that more clearly defines what we mean by “the right to bear arms”.

      And if it isn’t crazy — if the right to bear arms is unlimited and sacrosanct — then can we please stop arguing about things like the number of bullets in a handgun clip? Our time would be better spent repealing the laws that make it a crime for me to own an M1 tank (the same laws that keep the Koch brothers from owning an Unmanned Aerial Vehicle or T-1000).

      1. I doubt he knows what a Matrix of Disposition is, and would deny it exists if the evidence was ever put before him.

        But Dick Cheney is the evil one.

      2. Such a weird mixture of completely right and kool-aid drinking blind partisanship. Weird.

        Ask him what he thinks of the administration negotiating a UN Arms Control Treaty. Cross the streams, man!

        1. I still am trying to figure out the “Despite” at the beginning. I want to ask him how the Right to Bear Arms interferes with food stamps, but I have enough going on in my life that converting the world one retard at a time seems like an exercise in futility.

          1. I was scratching my head over that too…then I began to question your definition of the word genius.

            1. Perhaps ‘idiot savant’ would be a better choice of words.

          2. I think the first clause is his attempt to establish that he is not your typical right-wing nutjob even though he supports the 2A. He likes Free Shit every bit as much as your standard Obama voter.

      3. I think where he’s coming from is just a TAD silly (Rounding up liberals, intellectuals, and game designers? Really? If he’d said leakers, dissenters, and protesters he’d have made more sense. True totalitarian rule doesn’t end at the boundaries of political self-identification.) But I like where he goes with this.

      4. “…he had near genius level intelligence..”

        Funny how so many ‘smart’ people are completely lacking in wisdom.

        1. I’ve read of studies that show that the intelligent are far more capable of self-delusion than the non-intelligent. Our brains are tricksy things.

          1. I have heard the same, but one does not need a study to come to that conclusion. Merely spend a day observing academia.

            I have also noticed that smart people lacking in wisdom are actually unaware of the difference between intelligence and wisdom ( they dont know what wisdom is ).

            1. I have also noticed that smart people lacking in wisdom are actually unaware of the difference between intelligence and wisdom ( they dont know what wisdom is ).

              Ironic, considering how many RPGs (disproportionately played by intelligent people) have separate stats for each…

              I agree with tarran’s observation, FWIW. Think of how much creativity it takes to come up with some of the crazy bullshit behind a run of the mill conspiracy theory. Or the idea that a government can endlessly print money and pay for everything with no other effects.

              1. Unless you’re a Bard, Paladin, or Sorcerer, you can dump stat the shit out of Charisma. With sufficient WIS score, you can shake off most mental effects; like Progressivism.

      5. I would really love to know who is this imaginary, private individual the progressives seem to believe has the money, personnel, and interest, in keeping and maintaining nuclear weapons for their own personal use? To say nothing of more conventional weaponry which requires more than one person to successfully operate (M1)?

        1. I would really love to know who is this imaginary, private individual the progressives seem to believe has the money, personnel, and interest, in keeping and maintaining nuclear weapons for their own personal use?

          What?! You mean Stephenson was bullshitting us when he was talking about a dude riding around with a SLBM warhead in the sidecar? Aw, man, I’m so bummed now. If you can’t believe Snow Crash, what can you believe in? [goes, tears up plans for new burbclave…]

          Considering the number of warheads keeps shrinking, especially small ones, yeah, I’d have to say the number of private individuals interested in that sort of thing is really small. Never mind the upkeep. Still, I suppose there’s always a Guy Fawkes running around…

  14. Ohhh yes. I remembered last night…Groovus Maximus I owe you a bottle of scotch. Goddamnit. I always make good on my word.

    If you read this and you want your scotch email me an address and your preferred poison.

    1. Send me a bottle of Laphroaig Quarter Cask. I’ll make sure he gets it.

  15. The Big O is expanding presidential power in ways that make Dick Cheney say, “Dammit, why didn’t I think of that?”

  16. “We can’t wait for an increasingly dysfunctional Congress to do its job,”
    Uh, yes we can.

  17. “has nearly unprecedented powers”

    This is a pretty silly statement. Obama entered office with 60 DNC senators and a DNC majority in the House.

    What is depressing is that he couldn’t negotiate or compromise from a position of strength. He is less likely to do so from a position of weakness. He will overplay his hand just like W. Bush.

    1. Obama entered office with 55 DNC senators, and 2 independents that caucused with them. Franken wasn’t seated for nearly six months, and Ted Kennedy was busy dying at home.

      Even if you count both of them, Arlen specter didn’t change parties until late April 2009. And before Franken was actually seated, Byrd started dying too.

      They had 60 democrats (including those 2 independents) for about 4 months, all said.

  18. I guess I’ll have to be the first to admit that I imagined obama saying “I am the law” Judge Dredd style.

  19. Ignoring those considerations, at the time, the Washington Post editorial board called Obama’s gambit “a justifiable power grab.” In a similar vein, last month, the New Republic ran a piece helpfully (and brazenly) titled “Eight Ways Obama Can Jam Through His Agenda Without Congress.”

    Our friends in the lapdog media are always bravely speaking truth fellatio to power.

  20. “The liberal press is apparently uninterested in the rule of law and the separation of powers. ”

    Is that news to anyone?

  21. Warlord Obama just assassinated three children in Afghanistan: 12-, 10- and 8-years old. He. as did Warlord Bush, does whatever he pleases.

    Hey, hey Obamaay how many kids you kill today? Oh, fuck you to all the Obama voters and apologists. And don’t even get into the Romney would have been worse. HOW?

  22. Law is very important to a country, if there is no law, there will be no peace.

  23. The other part of Obama ignoring the Constitution, is that the Republicans allow him to get away with that behavior. What a timid bunch they are.
    I expect that Obama will install Susan Rice, as Secretary of State,by recess appointment, during the next Congressional bathroom break.

  24. ‘”We can’t wait for an increasingly dysfunctional Congress to do its job,” Obama announced late last year.’

    But the constitution was designed to ensure no one had royal powers – America had had enough of that with the English King George. Agreement, not dictatorial edicts, is the way it was designed to work. Isn’t Obama supposed to be a trained constitutional lawyer, and knowledgeable about such things?

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