Standing behind a podium on a stage just outside Cleveland, President Barack Obama delivered a speech yesterday that will reverberate throughout history. No, its lasting impact will not come because of its soaring rhetoric. Instead, it will make its mark because it was at that moment on a Wednesday afternoon in Ohio that the President announced his plans to act in total and utter disregard of the U.S. Constitution with his illegal appointment of Richard Cordray to serve as director of the Consumer Financial Protection Bureau (CFPB).
It's an astonishingly reckless exercise of executive authority that Heritage's Todd Gaziano described as a "tyrannical abuse of power." Never before in the 100-plus years of precedent on the recess appointment power has a President taken such an action while the Senate was still in session. Yet notwithstanding that fact, President Obama yesterday decided that he would be the first.
Here's why the President finds himself so far outside of constitutional bounds. Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses, as Gaziano writes. In this case, President Obama was seeking to fill the vacancy in the CFPB, a new agency that has come under significant criticism given its unparalleled powers to issue expansive regulations with virtually no accountability. Republicans in the Senate, to date, have refused to confirm the President's nominees to head up the CFPB, vowing to block Senate approval until reforms are made to the agency. So President Obama has decided to act without their approval by attempting to make a recess appointment. The trouble is that Congress is not in a recess because the House of Representatives never consented, as required under the Constitution, Article I, section 5. That means that the President simply does not have the power to make this appointment. Gaziano explains the implications of the President's actions:
[The recess appointment] power has been interpreted by scores of attorneys general and their designees in the Department of Justice Office of Legal Counsel for over 100 years to require an official, legal Senate recess of at least 10-25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough--but never less than that.)
The President's purported recess appointment of Cordray would render the Senate's advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong that Senator Mitch McConnell (R-KY) has already denounced. But it fits a pattern of extra-constitutional abuse by the White House that seems more interested in energizing a liberal base than safeguarding the office of the presidency.
Why take such action? The President says it's because he can't wait for Congress to act on behalf of the American people. The truth is that the President is hell bent on ramming through his agenda, and he is entirely unwilling to compromise with the duly elected representatives who sit in the House and Senate. By circumventing the Senate and appointing Cordray, the President can ensure that his big-government regulatory agenda is enacted without the reforms that Congress is demanding. Unfortunately, the Cordray appointment is not the only example of the President's wanton, unilateral actions.
Apart from Cordray, the President also plans to make three appointments to the National Labor Relations Board without Senate approval, which will fundamentally alter the makeup of the board and enable the President to realize his Big Labor agenda. That means an unrestrained push to unionize businesses at all costs and punish companies that seek to grow in non-union states (as was attempted in the Boeing case) -- even if it means harming both workers and the economy. And in the case of environmental regulations, immigration law, No Child Left Behind, the auto bailout, the selective enforcement of voting rights laws, and the regulation of the Internet (among others), the Obama Administration has in fact enacted its agenda via legislative fiat time and time again.
In an interview last month with 60 Minutes, the President gave warning of his intentions to preside over an imperial presidency for the next year. "What I'm not gonna do is wait for Congress," he said. "So wherever we have an opportunity and I have the executive authority to go ahead and get some things done, we're just gonna go ahead and do 'em." The President now, though, seems to have made a significant course correction.
With these latest illegal, unconstitutional appointments, the President has jumped at an opportunity to act regardless of the fact that he has no executive authority to do it. And under his feet is a trampled Constitution and 100 years of precedent for which he has no use. It's time for Congress and the American people to take a stand against President Obama's abuse of power.