A federal court issued a decision recently that has massive implications for some of Barack Obama’s radical czars, who were installed into positions of power without the consent of the U.S. Senate as required by the Constitution. Score one for the “Separation of Powers” doctrine!
As reported by The Washington Post:
President Obama exceeded his constitutional authority by making appointments when the Senate was on a break last year, a federal appeals court ruled Friday. The court’s broad ruling would sharply limit the power that presidents throughout history have used to make recess appointments in the face of Senate opposition and inaction.
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit flatly rejected the Obama administration’s rationale for appointing three members of the National Labor Relations Board (NLRB) while the Senate was on a holiday break.
Chief Judge David B. Sentelle sharply criticized the administration’s interpretation of when recess appointments may be made, saying it would give the president “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.” He added, “This cannot be the law.”
The Post notes that, due to a number of other similar lawsuits winding their way through the courts, this case is likely to end up in the U.S. Supreme Court. But for now, the court has ruled that the appointments are illicit. You can review the full decision here.
The ruling is an extraordinary slap down of President Obama’s power grab. Next time you hear a liberal tell you that President Obama is a moderate or “pragmatic,” recall the appellate panel’s analysis of Obama's legal justification for appointing these czars without the advice and consent of the U.S. Senate – Obama’s legal arguments “would demolish the checks and balances inherent in the advice-and-consent requirement.”
And so, what is to happen with the dozens of decisions made by the NLRB over the last year, in which the three unlawful appointees participated? As I’ve noted in this space, President Obama has used the NLRB as a battering ram for Big Labor at the expense of the private sector and the rule of law. These decisions are now surely open to court challenge. In the meantime, Obama’s pretenders at the NRLB will continue to make decisions despite the court ruling, which will only lead to more court challenges and constitutional crises.
The ruling most surely applies to the appointment of one of President Obama’s most controversial czars, Richard Cordray, who heads up the Consumer Financial Protection Bureau (CFPB). Cordray, you may recall, succeeded Elizabeth Warren when she left to enter the Senate race in Massachusetts. He, like the NLRB appointees, was the recipient of an Obama “recess” appointment and is therefore serving unlawfully.
(President Obama resorted to abusing the recess appointment process to install Cordray because Senate Republicans objected to Cordray’s penchant for anti-business zealotry. JW further noted at the time of the appointment that when Cordray served as Ohio Attorney General, he allowed Ohio state officials to rifle through the personal files of JW client Joe Wurzelbacher, a.k.a. “Joe the Plumber,” without accountability. The three Ohio officials, reportedly Obama campaign supporters all – attempted to smear Joe for daring to question then-candidate Barack Obama on his tax policies during a campaign stop.)
So if the NLRB appointments were unlawful – and they were – so too was the Cordray appointment. And now all of the agency’s decisions over the last year are cast into doubt: “The work of the Consumer Financial Protection Bureau could also be in jeopardy because the law requires the agency to have a director in place before it can exercise its power to write regulations and enforce them,” The Washington Post noted. Sure enough, we had already uncovered documents showing that Richard Cordray doubted the constitutionality of his own appointment!
Of course, this mess could have all been avoided if Obama simply followed his constitutional oath and issued his appointments with the “advice and consent” of the U.S. Senate.
But instead, pretending to be frustrated that his fanatical czars were being “blocked” by Senate Republicans, Obama acted unilaterally and beyond the powers given to him by the U.S. Constitution.
The Constitution allows the president to issue appointments when the U.S. Senate is in recess. But during the time that Obama made his NLRB and CFPB appointments, the Senate continued to hold pro-forma sessions. They were on a break, not a recess. Judge Sentelle summed it up nicely: Barack Obama does not have the power and authority to decide whether or not the Senate is in session.
Judicial Watch has been all over the president’s unconstitutional appointments. In 2011 we produced a comprehensive review of all of the Obama administration’s czars, and have educated Americans on the president’s abuses of power. We are thrilled that a court has seen past the president’s schemes and has upheld a key constitutional provision for the balance of power.