Barack Obama

Obama's Unconstitutional Executive Power Grab

Federal court slams Obama's executive overreach.

|

At the White House last Thursday, President Barack Obama announced his intention of re-nominating Richard Cordray to head up the Consumer Financial Protection Agency, the federal "watchdog" created to forbid "unfair, deceptive, or abusive" financial practices as part of the Dodd-Frank Act. In January 2012, stymied by Senate opposition to Cordray's original nomination to that position, Obama openly bypassed the Senate and simply installed Cordray in power himself. "He wasn't allowed an up or down vote in the Senate," the president complained at the White House last week, "and as a consequence, I took action to appoint him on my own."

Obama justified that one-sided action under his power to make recess appointments. Under the Appointments Clause of the U.S. Constitution, the president may make temporary appointments 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."

The problem here is that the Senate was not actually in recess at the time of Cordray's "recess" appointment, it was in a pro forma session. Obama therefore had no legitimate authority to install Cordray without first obtaining Senate confirmation as required by Article II, Section 2 of the Constitution. It appears the president ignored this inconvenient constitutional requirement in order to expedite his preferred political outcome, or as Obama himself put it, "I took action to appoint him on my own."

That disregard for the Constitution has now come back to haunt the Obama administration. On Friday the United States Court of Appeals for the District of Columbia Circuit issued a scathing decision which nullified three other equally suspect recess appointments made by Obama last year to the National Labor Relations Board. According to the majority opinion of Chief Judge David Sentelle, Obama's unilateral approach "would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

Indeed it cannot. To make matters worse for the White House, a separate lawsuit is currently underway challenging the constitutionality of Cordray's recess appointment, which occurred on the same day and under the same questionable circumstances as the three NLRB appointments that have now been ruled to be unconstitutional. Friday's decision by the D.C. Circuit will only add more legal force to this already strong case against the White House's executive overreach.

Every president wants Congress to fall in line behind his agenda and will complain bitterly if the legislative branch refuses to do so. But that feeling of frustration is no excuse for the president to trample on the separation of powers.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

84 responses to “Obama's Unconstitutional Executive Power Grab

  1. You’d think having studied Constitutional Law, Obama would have some modicum of respect for the document and its aims. Instead, Obama uses his knowledge like doctors use their knowledge of microbiology to destroy viruses and bacteria.

    1. What evidence exists that he has any knowledge of the Constitution?

      1. None. Most professors write books or papers on their subject, or are at least cited in other’s work on that subject. With Obama, zilch. Instead of writing about his chosen field of study, Obama wrote books about…himself.

        1. Obama is Obama’s field of study.

          1. Learning to love yourself, is the greatest love of all.

    2. He’s a constitutional scholar like a safecracker is a security expert.

      1. You’re giving him too much credit. The two schools of thought on Obama: blathering idiot or evil genius. I opt for blathering idiot.

      2. Safecrackers generally are security experts.

    3. Seriously, that meme needs to die. Aside from his obvious contempt for the Constitution, which even an expert on it could have, I suppose, all he ever was was an adjunct, right? Scholars usually have published works about their field, that sort of thing.

      1. I interacted with one liberal lawyer over at the Real Clear Politics boards who thought Obama was respect worthy because he was once editor of the Harvard Law Review.

    4. Obamanator: I have detailed files on the Constitution’s anatomy.

      Sarah Connor: To make you a more efficient killer?

      Obamanator: Affirmative.

  2. “But that feeling of frustration is no excuse for the president to trample on the separation of powers.”

    It might not be an excuse, but it sure is his modus operandi.

    1. This. “We” *must* DO SOMETHING; and if Congress will not act ….

  3. Admittedly I did not read the ruling, but I assume these appointees must now step down, is that correct? What happens to the NLRB rulings that occurred while they were on the board?

    1. I am pretty sure this overturns all of those rulings. And yes, the people involved are no longer on the board.

      1. Good, that makes sense, thanks for the clarification.

      2. What happens to their salary?

        Do they have to pay it back?

      3. not true. they’re still on the job and plan on staying there:

        “First things first, the NLRB said Friday that it plans to move forward with business as usual, issuing decisions in labor disputes as though nothing has changed”.

        1. Yeah, good luck enforcing those.

        2. I smell a Constitutional crisis.

          The courts have ruled that the NLRB cannot conduct business without a quorum, and that the recess appointments are invalid. Continuing in office and continuing to operate is in direct violation of the courts.

          It will be interesting to see what SCOTUS does. On the one hand, they hates them direct conflict with the Executive. On the other, this is a direct attack on the judiciary.

          1. Like his hero, Obama will threaten to appoint more justices.

            1. He would face an absolute insurrection if he tried it. Not even FDR could pull that off.

              1. He didn’t have to. And much like with FDR, what makes you think Roberts wouldn’t fall in line just like he did with Obamacare?

                1. By insurrection i mean armed mobs, people at various levels of government disobeying orders from the white house, ect… Roberts wouldn’t have a say in such an ordeal.

          2. R C Dean| 1.28.13 @ 10:01AM |#
            “I smell a Constitutional crisis.”

            I asked this last week; who is going to take action and enforce the law?
            Obozo isn’t; he doesn’t care about whether it’s constitutional or not. So who is going to enforce it?

            1. Well, the courts, by refusing to recognize or enforce anything these unconstitutional appointees do.

              I could also see some “self-help” (theoretically), where companies just start ignoring what they do. The NLRB issues an order, schedules a hearing, publishes a rule? Who cares? At this point they are an advisory body, not a governing body.

              1. Wile I’d love to see any and all of these responses, as well as see Obama’s ears get pinned back, I doubt ANYTHING will come of it.

                Where was the outrage when he went to war with Libya without Congressional approval? IMO, a far more serious infraction?

                Nothing. Zip. Zilch Nada.

                This man is above the law and no one cares. The Constitution is dead.

                1. *While

                  EDIT FUNCTION!

              2. I could also see some “self-help” (theoretically), where companies just start ignoring what they do. The NLRB issues an order, schedules a hearing, publishes a rule? Who cares? At this point they are an advisory body, not a governing body.

                You should not discount the ability of a government regulatory body to achieve desired outcomes through intimidation, with or without legal authority.

                1. You should not discount the ability of a government regulatory body to achieve desired outcomes through intimidation, with or without legal authority.

                  Never underestimate the government’s ability to regulate or ban something through sheer force of will.

                2. Yep. Especially since their pals in other regulatory bodies are likely to back ’em up. If you ignore an unconstitutional NLRB ruling, expect the IRS, DHS, etc. to take a special interest in you and your business. And, shockingly, I suspect they’ll discover all sorts of awful things that require your immediate compliance.

    2. IANAL, by my understanding is that they go “Whoosh!”

      1. IANAL

        Is this the appropriate place to come out of the closet like that, NTTAWWT.

        1. Yeah, IHNPLTA (I have never particularly liked that acronym).

      2. IANAL, by my understanding is that they go “but Buuush!”

    3. If Obama feels the rulings are wrong, he can unilaterally overturn the legal decisions. (new rule)

  4. “They have made their decision, now let them enforce it.”

    1. I always like a good The Crow reference.

      1. Actually, I believe it is a Andrew Jackson reference, originally.

    2. AJ aside, I’m curious, what is the norm in terms of a presidential administrations reaction to having something they initiated or signed into law struck down? It is disconcerting to see the president’s spokesman and the director of the NLRB going on about how they disagree with the opinion, since the opinion is the law.

  5. My first thought on seeing the title to this was “Which one?”

  6. You would think that impeachment would be a no-brainer in a situation like this where a President has so egregiously violated his oath of office.

    Obama’s transgression are so far in excess of Nixon’s or Clinton’s, yet Congress remains silent. Why?

    1. They have neither the balls, nor the honest characters, to impeach.

    2. President Biden?

      1. Bring it on. At least he would provide comic relief in addition to the diabolical mischief we already have under Obama.

    3. I agree that there should be actual consequences to a president breaking the law of the land.

      Imagine if a common citizen was caught robbing a bank. Instead of throwing him in jail they just made him give the money back and then sent him on his way.

      If the court just nullifies the appointments and all of their decisions then Obama has lost nothing. If he has lost nothing then he has every incentive to continue trying to overreach his power.

      1. Fortunately, the backlash from Obama’s own supporters will probably be punishment enough. A year’s worth of rulings overturned. They will be fucking furious, and not just with the court. They will be pissed off at Obama for putting them in this situation in the first place.

        1. Hopefully. But Obama has a way with words. I won’t be surprised if he manages to shift the blame to “conservative justices” or “Republican political pressure”.

          1. Obama doesn’t have a way with words. He has a press that willfully echos anything narrative he puts forward without question and attacks anyone who dares question it.

            Example: Democrats haven’t passed a budget in four years. Not a single Democrat has voted in the affirmative for a budget. Not one. And yet, who gets the blame?

        2. Don’t see it. The Cult of Obama is something the likes of which this country hasn’t seen in a long time.

          See [crowd-gasp] shock of surprise when he easily won a second term.

          People keep underestimating the sheer power of this cult. You underestimate it at your peril.

          1. Don’t think it’s limited to Obama.

            The Press has discovered that they can get away with being the propaganda arm for Progressives. Truth is that which serves the Progressive cause.

    4. Because half the Congressmen are Democrats. Party over Constitution.

    5. Are his transgressions worse than Bush? Serious question because liberals babble on about that sort of stuff when it’s not their guy in power. We’re witnessing this in Canada at the moment. All idignant with Harper but silent when the liberals are in power.

  7. Too bad our first “black” President couldn’t have been a Real American, completely Un-racist, Hot-Rod driving, Gun-Toting, Heterosexual like President Dwayne Elizondo Mountain Dew Herbert Camacho.

    Now we’re stuck with this Obama dip-wad for the rest of history.

    1. +1 for Idiocracy reference.

  8. great job President Asshole. your unconstitutional, irresponsible appointment of Dick Cordray and all his unconstitutional activity will only screw the economy more.

  9. I’m pleased at the ruling. Very pleased. But, didn’t past administrations make identical in-session appointments? This is at least part of the socialist talking points right now, the ever handy: two wrongs make a right rebuttal. This is also one of the reasons they claim the ruling will not hold if seen by the Supreme Court: decades of precedence.

    1. Not quite. The court went through the history of recess appointments and up until Woodrow Wilson, it was accepted that “recess” meant the formal recess between sessions of Congress, not intra-session adjournments. Appointments during adjournments like Obama did here are a relatively recent phenomenon.

      1. Reagan did it 36 times.
        http://newsandinsight.thomsonr….._invalid_/

  10. BITTER CLINGERS!

    Plus RACIST!

    That is all.

  11. This will all be cleared up after President Biden appoints the Immaculate Zero as Chief Justice of the Supreme Court at midnight on Christmas Eve, 2017.

    1. And I used to think how horrible it would be with Hilary on the Supreme Court.

      But do you think that The One can be bothered with a job where he had to actually put his own thoughts on paper? I mean, thoughts not about himself?

      He’s never shown any interest in writing about constitutional law as a constitutional law professor – would he bother with being a Supreme Court Justice?

  12. Well, he’s not going to be ‘held hostage’ by those darn rethuglicans!

  13. I think this is awesome. The chaos that will result from all the nullified rulings can, and should, be just punishment for the President bypassing the law. All the client special interests that benefitted from those ruling will be in an uproar. It will ensure that no President ever tries it again.

    If you’re going to break the law as President, you should know that there are risks involved, and that those risks include the courts not rubber stamping whatever you want to do.

    1. It’s not illegal when the president does it.

      /NixonObama.

  14. Look everyone knows that Rob Corddry, while funny, is unfit to be the head of the CFPB.

    1. CFPB is unfit for existence.

  15. It was never the intention of the founders for the Senate to be the place where the minority gets to kill everything, either. So strict formal originalism for Democrats, loose living loophole-ridden constitution for Republicans.

    1. it wasn’t their intention to have an unelected unconfirmed Dick Cordray writing law.

    2. It was their intention that if the minority didn’t like something then the majority would be forced to work with them and hammer out a compromise. I don’t seem to remember the president even trying.

    3. Last time I checked there were more Republicans in the Congress than Democrats. The Democrats single-digit majority in the Senate is more than offset by the GOP’s double-digit majority in the House.

      Which would make the Democrats the minority, wouldn’t it?

      1. Uh, not in the Senate.

    4. And yet I remember you insisting that it was “an ancient limit on the power of the majority to unjustifiably impose its will” only a few years ago. Interesting how history changes.

      1. What is this strange new phenomenon of people attributing thoughts to me I’ve never had…

        The filibuster, whatever its supposed virtues, was absolutely not a part of the founders’ plan for the Senate, and it has been quite obviously abused far beyond those supposed virtues.

    5. Our you seriously trying to argue that it’s acceptable for the President to break the law on the grounds that the Republicans won’t rubber stamp an appointment?

      What kind of partisan hack makes an argument like that?

      “He wasn’t allowed an up or down vote in the Senate,” the president complained at the White House last week, “and as a consequence, I took action to appoint him on my own.”

      Oh, wait. Nevermind ….

    6. Unconstitutional legislation (aka 99% of the bills passed by Congress) also wasn’t supposed to get passed

    7. ‘The founders’ didn’t write the Constitution – it was mostly James Madison and I think he made it pretty clear that by installing the checks and balances and separation of powers the way he did that this was exactly his intent.

      He understood human nature and the fact that those most desirous of power are those least to be trusted with power. Politicians – to a man – are the sort of people who desire to be politicians, a low and cunning sort of reptile. By setting things so that they would spend most of their time fighting with each other, it would tend to leave the general public safe from their depredations.

      Our Constitutional form of government wasn’t instituted to ‘get things done’ so much as it was innstituted to keep government from doing so much crap that not only doesn’t need to be but shouldn’t be done.

      Unfortunately, the majority of the voting public prefers a strong, active government. The good that a good dictator can do is far outweighed by the bad that a bad dictator can do – and history should show that we are far more likely to be ruled by a bad dictator than by a good since good people generally don’t desire to be dictators while bad people do – but the continued success in selling scratch-off lottery tickets indicates that even a foolish hope springs eternal in the human breast.

  16. Why does this really matter? Since when has Obama or Bush or any of the last number of presidents followed the Constitution?

  17. It was never the intention of the founders for the Senate to be the place where the minority gets to kill everything, either.

    Just the really stupidly in-your-face majoritarianist thuggery.

  18. Obama openly bypassed the Senate and simply installed Cordray in power himself.

    Something something unelected bureaucrats still democratic something petition your senator something.

    /T o n y

  19. “That disregard for the Constitution has now come back to haunt the Obama administration.”_____________________

    When has disregard for the Constitution ever haunted Obama? Or any President for that matter…

  20. I can?t wait to see how the leftist justices in the SC will vote on this. Any judge supporting Obama on this would be a shame.

  21. Nicest chat and chat Iraqi entertaining Adject all over the world
    http://www.iraaqna.com

Please to post comments

Comments are closed.