Monthly Archives: January 2012

More Obama Lawlessness

In our previous article, we pointed out the unlawful actions of President Obama in his use of recess appointments. Two other unconstitutional practices of modern Presidents are the misuse of “signing statements” and “Executive Orders”, and Obama has abused this practice more so than any of our previous Presidents.

Signing Statements

In an era of multi-thousands page “comprehensive legislation” and “omnibus spending bills”, laden with irrelevant amendments that plunder our treasury and expand the control of government over our lives, Presidents started using Signing Statements to express their disapproval of segments of the legislation. Occasionally they will express in the statement their intention to not enforce certain portions of the bill because they either believe them to be unconstitutional or bad policy.

The Constitution is quite clear as to the duty of the President in respect to his approval or disapproval of legislation passed by Congress.

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.” (Art. 1, Sec. 7, Para. 2)

A primary responsibility of the President is to defend the Constitution. When a President signs a bill he believes to be unconstitutional or contains amendments that are unconstitutional, he is not fulfilling that responsibility. The same is true if he allows the bill to become law by neglecting to sign it for a period of ten days. If a Signing Statement by the President indicates that he believes any part of the bill to be unconstitutional or that certain requirements of the bill are bad policy, therefore he does not intend to enforce those he disagrees with, he is confessing to an intention to commit an impeachable act. Article II, Section 3 requires of the President that … “he shall take Care that the Laws be faithfully executed”.

A bedrock principle of a constitutional republic is that all laws apply equally to everyone, not just the peons in the general public. If the President believes any part of a law to be unconstitutional, it is his responsibility to return it to Congress along with his clearly stated reasons why he believes it to be unconstitutional. Once a law is signed by the President it becomes the law of the land until it is either repealed by Congress or declared unconstitutional by a court. The President does not have the prerogative of deciding which laws he will or will not enforce. If Congress overrides the veto of an unconstitutional bill, the members of Congress who voted to override it should be noted by the voters and turned out of office in the next election. These same principles apply to many Executive Orders as well.

Executive Orders

The power of the President to issue “executive orders” is an implied power common to all executives in or out of government. Just as executive orders in the private sector apply only to those employees under the supervision of that executive, executive orders issued by the President are binding only on the employees of the Executive Branch of government. They are not legally binding on the Legislative or Judicial Branches. Neither are they binding on employees of state and local governments or on the public at large. To consider them so is a violation of the constitutional doctrine of “separation of powers”.

Any executive order enforced on the general population by the police powers of the state becomes a despotic decree and should not be tolerated in a constitutional republic. The first sentence of the body of the Constitution clearly states that,

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (Art. I, Sec. 1)

Several of the Republican candidates have expressed their intent to issue executive orders — if elected — nullifying all or portions of laws already on the books. While this may sound good as a campaign promise and is well received by many conservatives; for the reasons stated above, it should be disturbing to all constitutional conservatives and possibly a dis-qualifier in the primary elections.

The unconstitutional use of recess appointments, signing statements and executives orders by Presidents are violations of the Constitution and of their oath of office. In fact, they are serious enough to be considered as impeachable offenses. More on this later.

Obama Flaunts the Constitution With Cordray Appointment

On Tuesday, President Obama announced four “recess appointments” to fill vacancies in the National Labor Relations Board and the Consumer Financial Protection Bureau. These four appointments are indicative of a growing trend in the Executive Branch of government to circumvent the Constitution and rule by fiat. The appointment that has the Republicans up in arms is the appointment of Richard Cordray to head the newly created Consumer Financial Protection Bureau. Obama first nominated Cordray to head the agency in July but his confirmation has been blocked by the Senate. In December, the Senate voted to delay the consideration of Cordray’s appointment 53 to 45.

In making the announcement, Obama told a crowd at an Ohio town hall meeting, “I refuse to accept ‘No’ as an answer” showing his growing willingness to bypass Congress and “go it on his own” when Congress stands in the way of his doing what he wants to do. Recess appointments are not new. Previous Presidents have made appointments of judges and other high-level officials in the past with minimal opposition from the Congress. While the Constitution allows for recess appointments there are limitations on that power.

Article II, Section 2, Paragraph 3 says,

“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.”(Emphasis added)

Notice, this clause does not give the President the power to fill any vacancy he pleases, but only those that “happen” (come-up or occur”) while the Senate is in recess. It does not include those vacancies that happened before the Senate went on recess or positions previously created by Congress but not yet filled. Constitutional recess appointments are a logical and practical solution created by the Founders for dealing with unexpected vacancies in important positions such as Cabinet Members, Supreme Court Justices, etc., due to incapacitation, death or resignations that may happen while the Senate in not in session. Vacancies that existed before the Senate recessed and all other Executive appointments are subject to the conditions given in Article II of the Constitution.

“He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, ………….. And he shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministries and Consuls, Judges of the Supreme Court and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”(Art. II, Sec. 2, Par. 2, U.S. Constitution)

According to this clause the President does not have the power to appoint someone to maintain his lawn at the White House unless that position has first been established by law and the President or the head of the Grounds Keeping Department has been authorized by law to make the appointment without the approval of Congress.

The practice of “recess appointments” as practiced by previous Presidents and carried to a new high by Barack Obama cannot be allowed to continue. The fact that it has become a tradition over the past century, in spite of the clear language of the Constitution does not change the constitutional injunction that elected officials honor their oath to defend the Constitution. To paraphrase an old theological question; How long does an error have to continue before it becomes truth?

Obama’s lawless, arrogant and dismissive attitude toward the Constitution and other institutions of the American government that we have cherished for over two centuries only highlights the critical need for us to return to constitutional government at the first opportunity. We cannot afford to nominate a Republican candidate in the 2012 election where there is the slightest doubt as to his or her fidelity to the Constitution and our founding principles.

Executives Orders and “signing statements” are two other common practices of modern Presidents that are just a pernicious and unconstitutional as “recess appointments”. All three have been abused frequently by Barack Obama to circumvent the intent of Congress. These will be discussed in future posts.