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.


12 responses to “Obama Flaunts the Constitution With Cordray Appointment

  1. Yesterday, I emailed both my representative and Boehner’s office to express my outrage. I urged my rep to initiate or support Articles of Impeachment and to let me know what she intends to do about this tyrannical overreach. To Boehner’s spokesman, I urged Boehner to promptly put an ultimatum to the President: immediately withdraw the appointments or face impeachment. I reminded the spokesman that there is no higher political purpose than safeguarding the Constitution, party politics being absolutely secondary in importance. Thankfully, the spokesman confirmed he’d been deluged with such calls, but I detected only courteous attention to my call,a nd nothing more. Both my rep and Boehner’s office have been asked to reply so I can share same with friends and family and local papers. Though I’m genuinely offended and sickened by Obama’s brazenly unconstitutional act, I expect our so-called representatives in DC will do little more than loudly denunciate his arrogance, nothing more. This Republic is clearly on a downward spiral and I’m sincerely scared for my family and community.

  2. I wanted to respond to this the other day but I thought my head would explode. jdelaney3 is right on target. Personally, I have serious doubts about Boehner and beyond feigning disgust temporarily to satisfy the constitutional arm of the Republican Party, he’s oddly quiet on the matter.

    The number of times that the President and others within the Democratic Party have referenced “going it alone – without Congress” since the mid-term elections has been alarming. I noticed the theme really begin to take off back in July with his speech to La Raza. It may have begun before then but that’s when it seemed to take off for me. “I wish I could bypass Congress and do things on my own”, to quote the President. I thought it was an odd statement for The President of the United States to be making, even in jest, and odder still the applause he got for making this statement. Since then, acting without Congress and doing what he can do on his own has been a consistent theme in his speeches and I’m realizing now that he wasn’t kidding back in July. Congress is becoming irrelevant. And it’s not just the President. NC Governor Bev Purdue suggested suspending the elections for two years “to find economic solutions without worrying about the consequences of an upcoming election”. Seriously? And where was the outrage over the “Debt Super Committee”?

    It’s unfortunate but for the majority of Americans, the Constitution and subsequent Bill of Rights are nothing more than occasional sound bites to be used to justify arguments for going against the very documents they purport to be defending. Obama himself stated in 2001 that “the Constitution was a charter of negative liberties”. A charter of negative liberties that he’s sworn to protect. I guess we missed that one in 2008.

    • I have no doubt that Obama would like to pull off a Hugo Chavez type takeover of government. I don’t think he can pull it off in 2012, but if Ron Paul decides to go third party, then Obama will have another four years to work on it. He is signalling his intention by having the justice depart fight voter identification laws in the states.

      The Dems are doing everything they can to establish a climate to make voter fraud easier to accomplish in 2012. The one that begs local politicians to commit wholesale fraud is “early voting”, followed by “motor voter” registration and loosely monitored “absentee voting”.

  3. Magaleto Olea

    I beleive its up to the Senate and House of representatives to respond
    But if all three branches ignore the constitution–then what????

  4. “Then what???” The quintessential question of our times.

    I know what the founders would counsel, and it’s not pretty.

  5. Obviously, as Mark Levin would say, we are living in a post-Constitutional America. Our government has deteriorated into a state of anarchy no longer recognizing the rule of law. The Constitutional remedy would be a wholesale impeachment of members of the executive and Judicial Branches. You can’t impeach members of the Legislative Branch. However, they can be expelled by a vote of the respective houses.

    Unfortunately, neither Congress nor the American People seem to have the stomach or the backbone for such drastic action. I fear the prophesy of Ben Franklin on the last day of the Philadelphia Convention has come to pass, “We have become so corrupt that we can only have a despotic government”. (paraphrased) To quote my favorite political philosopher, Pogo Possum, “we have met the enemy and he is us”.
    Pogo O'Possum

  6. Well said. Sadly, as I intimated above, the ultimate remedy is very well defined and not at all pleasant. BUT, if that’s what it takes, I’m all for it.

    • I think it’s about time some of the conservative leadership and the Tea Party movement began to seriously advocate for the impeachment of Obama. There are ample grounds for impeachment on the things he has already done. The Constitution term “high crimes and misdemeanors” refers to the level of the office the person holds when he commits the acts, not the criminality of the acts themselves. Malfeasance in office and failure to abide by his oath of office are both impeachable offenses under the Constitution. In fact, the most serious crime an elected official can commit is the conscious violation of the Constitution, “the Supreme Law of the Land” and the law governing the operation of the Federal Government.

  7. Jerry,
    One problem with impeachment–and a big one: while the House can impeach–and, as you know, the grounds for impeachment are essentially dictated by politics alone–so long as the Senate remains in Progressive hands, conviction and removal, the object of impeachment, is impossible. Thus, impeachment now would be symbolic only. I wish there were another Constitutional way to rid us of this thug, but, regrettably, short of a coup d’ etat or open rebellion, methinks we’re stuck with this tyranny until January 2013.

    • You are correct. Impeachment at this time would be symbolic only. At the same time, we cannot allow the unlawful conduct of Obama to go unchallenged for another year. An impeachment trial now would probably work against the conservative interest because of the chaos it would cause.
      Unfortunately, the 2012 election is not a slam-dunk in spite of what most conservatives think. There is still the possibility of a successful “ballot stuffing” effort by the Dems and the possibility of Ron Paul running as an independent and throwing the election to Obama. I think we should do our best to conduct a serious, sober discussion about the need and desirability of impeachment over the next few months as an insurance policy against a second term for Obama.
      Such a discussion would have two advantages. It would help alert voters of the seriousness of Obama’s unlawful actions and would help set the stage for his impeachment should he be reelected.

  8. Agreed. Impeachment must be seriously and publicly discussed. Question is by whom? Our tepid “leaders” are, for the most part, paralyzed with the fear that even the discussion of such a topic would work against them politically.
    (Check out my two recent posts on the recess issue on http://Opinerlog.blogspot.com

    I spoke with both Boehner’s and McConnell’s office, and was genuinely disappointed by their seemingly lackadaisical reaction. To my knowledge, only Sen. Grassley and some conservative talking heads have loudly protested the recess appointments, I don’t see anyone of “importance” stating that what the Thug-in-Chief has done is “unconstitutional”. They use timid, powerless words like “unprecedented”, etc.

    What this does underscore is the absolute necessity of our gaining a solid GOP control in both the House AND the Senate. (Hopefully more will be conservative, first-principle types than RINO types.) If Obama is somehow re-elected, by hook or crook, only impeachment and conviction can rid us of this plutative “president”, and only a 2/3 majority in the Senate and a solid majority in the House can accomplish that.

  9. When I first started writing about the Constitution five years ago, the subject was never brought up by politicians or the media. Today it is routinely discussed. I am not vain enough to believe that my writings had any affect on public debate or public opinion. However, as Alexander Graham Bell pointed out, “ideas are in the air”. Dr. Maxwell Maltz later pointed out in the 1970s that they are also contagious. If a few conservatives begin to write and talk in a logical, serious, and civilized manner so as not to sound like wild-eyed, fire-breathing fanatics, concerning impeachment, I believe the effects would snowball.

    BTW a visit to your blog reminded me of another fact I forgot to comment on. All the negative comments regarding Obama’s recess appointments that I have heard focuses on the fact that the Senate was not in formal recess because both houses did not agree. Article II,Section 2 gives the President the power to “… in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;”

    As is so often the case those who are objecting to Obama’s actions are quoting the wrong section of the Constitution. The problem is that the vacancies themselves did not happen while the Senate was in recess.