Former AG Meese: Obama's 'Recess' Appointments Are a 'Constitutional Abuse of a High Order'

In a Washington Post editorial Thursday, Edwin Meese, the former U.S. Attorney General under President Ronald Reagan, and Todd Gaziano, Director of the Heritage Foundation’s Center for Legal and Judicial Studies, wrote that President Obama’s unilateral appointment of three individuals to the National Labor Relations Board, and of Richard Cordray to head the new Consumer Financial Protection Bureau, while the Senate was not in recess, is a “breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

The authors asserted:

…never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

The beauty of this editorial is that Mr. Meese and Mr. Gaziano provide instruction to handle this rogue president who continues to thumb his nose at the Constitution. They continue:

President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules…Congressional leaders of both parties must vigorously (though thoughtfully) defend their prerogatives. Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all “must-pass” legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.

The authors conclude:

If Congress does not resist, the injury is not just to its branch but ultimately to the people.

if we were not already aware, “Congress” includes Minority Leader Nancy Pelosi, who, naturally, praised the president for trampling over her branch of government. Regarding Mr. Obama’s power grab, Mrs. Pelosi said, “…we’re glad that the president took the lead, went out there, it was bold and made the appointments.” (Translation: How else can I get the things I want since I’m no longer Speaker?)

But, “Congress” also includes Speaker John Boehner, whose response to the bird he was just flipped was that the president’s action is “bad for jobs.” Mr. Boehner said, “This action goes beyond the President’s authority, and I expect the courts will find the appointment to be illegitimate.” 

So that’s it? Just file a lawsuit and get back to the business of the day? No defense of the Constitution, of the separation of powers? No conditions placed on future legislation? No talk of impeachment?

Below are some of the Republican presidential candidates’ responses, that were available to date, to the president’s heinous actions:

Ron Paul: “By making ‘recess’ appointments to the Consumer Financial Protection Board (CFPB) and the National Labor Relations Board (NLRB) when Congress is not actually in recess, President Obama has acted in clear disregard of the Constitution…And the President must be called to account for his actions.”

Newt Gingrich: “The answer to an imperial president is a Congress which stands on its own rights. And the correct response to what the president just did would be for the Congress to zero out and refuse to fund the National Labor Relations Board. The National Labor Relations Board now has a majority of members who were never confirmed by the U.S. Senate. This is a clear violation of the spirit of the law, and Congress has an obligation to defend our rights, and the correct way is the power of the purse.”

Mitt Romney: “Just back from vacation, President Obama has wasted no time in returning to one of the top items on his agenda: doling out favors to his big labor political allies and giving them a dangerous level of power over businesses and workers. His recess appointments to the National Labor Relations Board give this unaccountable and out-of-control agency the authority to continue acting in ways that create uncertainty for businesses, drive up their costs, and discourage hiring or investment. President Obama’s preference for partisan politics over economic growth will only hurt the millions of middle class families across the country who lose out every time the union bosses win. As president, my focus from day one will be on getting our economy turned around by pursuing policies that strengthen rather than stifle job creation.”

Rick Santorum: “I hope that the United States Senate does what they’re supposed to do, and they should go and even take the president to court. This is not something that the president should get away with.”

I know “It’s the Economy, Stupid.” But, for whatever it’s worth, the major issue of the upcoming election is whether our Constitution, and the nation as we know it, endures. In my book, presidents and members of Congress who violate the Constitution, or fail to uphold their oaths to defend it, are, in a word, unelectable.