Obama’s Assault on Separation of Powers

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It is highly likely that, if asked, Attorney General Eric Holder gave Obama the green light to do whatever he wanted, without bothering to consult prior Justice Department opinions or the text of the Constitution. However, as all eight Republicans on the Senate Judiciary Committee reminded Holder in a letter inquiring whether he advised on the four questionable “recess” appointments, former Department of Justice opinions have questioned the power of the president to deem the Senate as being in recess under the Constitution if it has not adjourned for more than three days. In fact, Attorney General Daugherty declared in 1921 that, while an appointment made during a 29-day intrasession recess was constitutional, “an adjournment for 5 or even 10 days [cannot] be said to constitute the recess intended by the Constitution.” More recent pronouncements on the issue, including during the Clinton administration, have asserted that the Recess Clause applies to adjournments in excess of three days.

It’s time that Obama, who once taught constitutional law, and Professor Tribe for that matter, open their copies of the Constitution gathering dust on their desks and turn to Article I, which defines the powers of the legislative branch. I’ll make it even simpler for them. Here are the pertinent provisions:

Art. I, Section 5:

Clause 1: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”

Clause 2: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Clause 4: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

Aside from the constitutional obstacle to Obama’s questionable “recess” appointments, the Cordray appointment has an additional legal hurdle to climb – the text of the Dodd-Frank Act itself. Section 1066 states that no authority to operate is transferred from the Secretary of the Treasury to the new bureau until its director has been “confirmed by the Senate.” Section 1011 states that “the Director shall be appointed by the President, by and with the advice and consent of the Senate.”

As Mark A. Calabria of the Cato Institute explains:

The Dodd-Frank Act is very clear, even a law professor can probably understand this section, that authorities under the Act remain with the Treasury Secretary until the Director is “confirmed by the Senate.” A recess appointment is not a Senate confirmation.

Well, maybe not all law professors. In his New York Times op-ed article titled “Games and Gimmicks in the Senate,” Professor Tribe argued that Obama acted properly in order to carry out his obligation under Article II of the Constitution to “take care that the laws be faithfully executed.”

[T]his duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes… the C.F.P.B. cannot legally exercise its full statutory authority, including the regulation of credit reporting agencies and payday lenders, without a director.

Tribe needs to read more carefully the statute that established the CFPB. If the president is truly taking care that this law be “faithfully executed,” he has to comply with all of its provisions. As noted above, the Dodd-Frank Act requires that the director be “confirmed by the Senate” in order for the CFPB to assume any powers.

There is good reason for this special caution. Once properly confirmed, the director of the Consumer Financial Protection Bureau will have enormous powers. His agency will regulate the offering and provision of consumer financial products or services under the federal consumer financial laws, which will cover everything from providers of mortgages, education loans and payday loans to insured depository institutions and credit unions. The agency will be under the wing of the Federal Reserve, with little accountability to Congress and not subject to annual congressional appropriations decisions. Even the Federal Reserve, which is itself an opaque institution, will not be able to interfere with the director’s actions. However, it is the Federal Reserve earnings that will be used to fund the federal consumer bureau.

It makes sense, therefore, for Congress to have reinforced the active role it is to play in vetting and approving the director, which in turn triggers the full operation of the bureau. Thus, he must be “confirmed by the Senate” – no carve-out for recess appointments by the president.

“We can’t just wait for Congress,” Obama has said. Americans concerned about preserving our constitutional republic of checks and balances and separation of powers can hardly wait for the voters to send Obama back to Chicago for a long-deserved permanent recess from the presidency.

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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