Yale law and political science professor Bruce Ackerman is certainly no friend of our written constitutional forms. In his book, We the People: Foundations, he advocates an informal constitutional “amendment” process, whereby the people may skirt what he calls the “classical” amendment process that was “sketched by the Founding Federalists in Article Five of the original Constitution.” In its place, Ackerman writes, the people may indicate their support for constitutional change through the regular electoral process. Afterward, instead of “confront[ing] a laconic text of high abstraction inscribed in a formal constitutional amendment,” Supreme Court justices should provide “codification” of this informal constitutional change “without insisting on a formal Article Five amendment.”
Yet even Ackerman wants President Obama to come clean about the legal advice that he got and followed in recently installing controversial figures into office without Senate consent. Obama issued “recess” appointments to fill those positions when the Senate — which is controlled by his own party — wasn’t even in recess.
In the Wall Street Journal, Ackerman writes,
“In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. The entire Judiciary Committee, Democrats as well as Republicans, should be demanding the immediate publication of her opinion. While it is important to know whether the Office of Legal Counsel dissented, her views were the ones that won presidential endorsement.
“Publication is particularly imperative given the nature of the current controversy. Under current law, the president appoints his counsel, along with almost all other White House aides, without the need for Senate approval. In contrast, the head of the Office of Legal Counsel, Assistant Attorney General Virginia Seitz, has gained the Senate’s advice and consent.
“This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to Ms. Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.”
Ackerman adds, “The question…is whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”
All of this is made even worse by the nature of one of the positions that Obama filled — the head of the newly created Consumer Financial Protection Bureau (CFPB). In these pages, Fred Barnes has written,
“[T]he CFPB won’t be a nice little regulatory agency. It will be powerful, hard-nosed, and unaccountable. It will decide its own budget without the obligation of asking Congress for money. It will have no governing board, only a director whose rulings can’t be vetoed. It will be almost impossible to challenge those rulings successfully in court.
“The bureau, created by the Dodd-Frank legislation that revamped regulation of the financial industry last year, is a favorite of President Obama. And, like his health care law, it perfectly reflects his view of how government should work: It gives enormous authority to unelected bureaucrats in Washington. Administration officials were reported to have high-fived when it became clear the bureau would be part of Dodd-Frank.
“Republican Spencer Bachus of Alabama, chairman of the House Financial Services Committee and a sharp critic, says the bureau won’t be like an efficient private sector company (his examples are Costco, Amazon, and Southwest Airlines) but rather like Amtrak, the government-run passenger rail line. ‘If you like TSA at the airport,’ he adds, ‘you’ll love these guys.’”
How can a government agency decide its own budget when the Constitution clearly grants Congress the power of the purse? It can do so in much the same way that a president can issue “recess” appointments (which shouldn’t be used as a matter of political expediency in any event) when the Senate isn’t in recess.