Obama’s Assault on Separation of Powers

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President Barack Obama has abused his constitutional powers once again. This time, Obama got so frustrated with the way in which the Senate was exercising its constitutional “advice and consent” authority regarding some of his nominations that he leaped ahead to make four so-called “recess” appointments, even though the Senate did not deem itself to be in recess at the time. In accordance with precedents accepted by congressional leaders of both parties and followed during the previous Republican administration, the Senate has determined that by holding “pro forma” sessions every three days it is not in recess. Nevertheless, Obama disregarded the Senate’s constitutional right to make its own rules on when it is in session, and its “advice and consent” power over presidential nominations, by unilaterally appointing former Ohio Attorney General Richard Cordray as director of the new controversial Consumer Financial Protection Bureau (CFPB). He also filled three National Labor Relations Board (NLRB) vacancies.

Obama, running a demonize-Congress re-election campaign, was in full campaign mode when he rubbed his “recess” appointment of Cordray in Congress’s face last week. He announced the appointment, with Cordray standing at his side, at a campaign-style rally in Cordray’s home state of Ohio.

“I refuse to take ‘no’ for an answer,” Mr. Obama said, rejecting in essence the fundamental constitutional principle of checks and balances that sometimes means the Congress will say no to the president. Obama did not want to take “no” for an answer with regard to Cordray for one simple reason. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, which established the powerful Consumer Financial Protection Bureau, the bureau could not start exercising its considerable powers and issuing regulations until a director was actually in place. And there is nothing that excites this president more than another regulatory agency clamping down on even more sectors of the free market economy.

Indeed, chomping at the bit to get started issuing business-hobbling regulations upon his illegal appointment, Cordray warned: “We’re going to begin working to expand our program to nonbanks, which is an area we haven’t been able to touch before now.”

In order to install Cordray right away and kick-start the new consumer bureau into operation, as well as fill the NLRB vacancies, Obama relied on the presidential recess appointment power under Article II of the Constitution (Section 2, Clause 3), which states:

The President shall have Power 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 Obama White House legal team’s lame defense for Obama’s imperious action is that the Senate’s pro-forma sessions were merely dodges to thwart his recess appointment power. This circular reasoning, shared by the left-wing Harvard Law School Professor Laurence Tribe, presupposes that Obama has the authority to determine when the Senate is or is not in recess as opposed to the Senate itself – a blatant assault on the separation of powers.

This is a country of laws, not unilateral presidential fiat. Under the Constitution, each house of Congress makes its own rules for how it conducts its proceedings, which inherently includes its own determination when it is in session and when it is in recess. Not an impatient president. Not the White House legal team. Not the Department of Justice.

Also, in a country governed by the rule of law, precedents should matter. Democrats had initiated the “pro-forma” session procedure to prevent recess appointments during the administration of George W. Bush, which the Bush administration honored. The same procedure was being followed during the Obama administration with the concurrence of the congressional leadership of both parties.

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  • http://www.contextflexed.com Flipside

    Bullsh–, Joseph. If Obama had appointed Larry Summers, you would have creamed yourself.

    • mrbean

      The Consumer Financial Protection Bureau (CFPB) is a regulatory agency charged with overseeing financial products and services that are offered to consumers. The Consumer Financial Protection Bureau is divided into several units, including: research, community affairs, consumer complaints, the Office of Fair Lending and the Office of Financial Opportunity. These units work together to protect and educate consumers about the various types of financial products and services that are available. Sooo… it is a government power grab over financial institutions that bypasses the enforcement of contracts. Fair Lending and Financial Opportunity, are catch words for social engineering in private financial imstitutions. Unconstitutional by definition.

      • http://www.contextflexed.com Flipside

        Aspergers must suck for you.

  • Ken

    Uber-Lefties and Progressives will always try to go around any rule, Constitutional or not, to get the radical changes or appointments they desire. It's a double standard, as well, due to the fact that the Senate (i.e. Harry Reid) used the same tactics to try to derail Bush's appointments. But back then, it was OK. No double standards, please!! One standard will do just fine.

    • Asher

      Its called Agenda…They keep pushing forward Destructively.

  • scotsirish

    Just another milestone on the way to …………..
    I am so disgusted with this tromp on the Constitution.
    Every Senator that does not stand up against this is commiting treason
    with Obama.

  • Asher

    They are going after you money folks. At some point we won't be able to pay Cash for an item for more than $150.00…they want you to use Credit cards and your purchases will be recorded, because they want your cash….This is happening in Europe now

  • Fred

    That's why the radical left's motto is "By Any Means Necessary".

  • pierce

    II just think this ironic, but he, Barack Obama, is starting to emulate the President of Venezuela. It starting to look like a snowball rolling down a hill, picking up steam, and getting out of control. He is acting like he is our supreme leader, and if given the chance would overturn the Constitutional Amendment limiting a President to 2 4 year terms.

  • Marti

    Cordray helped voter fraud in Ohio when Obama was running, also the Secretary of State,
    Jennifer Bruner.
    Cordray is another Community Organizer.
    He was assocciated with the Acorn community groups.
    Another Marxist with over reaching power.

  • mlcblog

    The ignorance and arrogance of this lawless twit seems to know no bounds.

    Typical of immaturity, he gets himself into a no-option corner (in his mind) and then uses that as an excuse to act out and do things his way and try to satisfy his needs while often disregarding the rest of us or any considerations of social order. Pitiful.

  • mlcblog

    Dear Site Overseer,

    Flipside's reference to male ejaculation is highly offensive to me. Sexually graphic, recalling a rape I once endured as a small child at the force a teenage boy, and I really hope you are monitoring this kind of thing.

    Who needs it? Fabulous wonderful normal sex doesn't need to be talked about but there will always be some who have to detract from the beauty of life somehow. I get that.

    I just needed to object. I trust you are monitoring this site for appropriateness of comment.

    Thank you, mlcblog

    • http://www.contextflexed.com Flipside

      I am sure your comment was much more graphic than my passing use of idiom.

      • mlcblog


        Your idiom, coarse as it is, did not get a pass.

        I do appreciate you for manning up and responding. If you want to use these type of "idioms" I will pass over them in the future, as I do not care to involve myself in this. When I see these sorts of vulgarisms, I am reminded of the giggling and chortling of teenage boys who are just discovering how their bodies work.

        • http://www.contextflexed.com Flipside

          And lord knows the churning that makes in your loins.

  • Maxie

    Obummer and his gang seem to be using the Mussolini Model of governance for which Benito himself coined the word "totalitarian" (*). Bambi gets away with it because we do not have a coherent, committed opposition party. Just a bunch of election-cycle oriented Fat Cat careerists feeding at the lobbiest's money trough. They're called RINOs.

    (*) Joshua Muravchik, "Heaven on Earth: The Rise & Fall of Socialism" Ch.6

  • Maxie

    The so-called monitor here is a computer program which auto deletes any and all political terms of substance. I can't tell you what they because this post would be auto deleted and never seen. I posted one such an hour or so ago and it never saw the light of day. Really odd because it was well thought out, innoffensive, substantive and germane to the problems in our rapidly deteriorating constitutional government. But dirty words seem to be OK.

  • guest

    Send congress home, and for that matter the senate. Obama rules by executive order.
    The house and senate do not matter, except if they impeach him. Its their last power.

    The people who matter are his secret council, the Muslim Brotherhood. If you want something done, call the Saudis. He bows to them,. they send us to war at our expense, and we send them billions in aid, so they are his and the USA's superior. Its an Islam thing. He clearly indicates their higher status to him, the US president. As he said, America is a failed experiment. I read into that he thinks we should be under some other system, like sharia? It was the Saudis who got him elected, just to prove they could buy anyone in the way.

    Get over it. Vote in 2012