‘A Lawless Action by the President’
9:36 AM, Jan 6, 2012 • By JEFFREY H. ANDERSON
As Adam White explores in much greater detail, President Obama plainly doesn’t like being required to obtain Senate approval of his nominees — even though the Senate is controlled by his own party. Instead, Obama has preferred to entrust power to so-called “czars,” who aren’t approved by the Senate and whose posts (unlike most high-level positions in the executive branch) aren’t established by Congress. He previously used a recess appointment to circumvent the Democratic controlled Senate and install the controversial Donald Berwick — an outspoken advocate of health care rationing — as head of Medicare and Medicaid. Now he has decided to go further, issuing “recess” appointments even though the Senate is in session.
“I think this is a lawless action by the President at the end of a long string of lawless actions. And it’s banana republic. The President is saying, I won’t let Congress stop me, actually, but it’s in the Constitution that you have to have the Senate approval. The Senate — he can only make a recess appointment if the Senate is in recess. It is not in recess. In fact, his own Justice Department argued last year, before the Supreme Court, that the Senate has to be out of session for three days. It is not been. And that appeal was based on a ruling of the Clinton Justice Department: three days.
“You can appoint anybody you want in a recess appointment….But you can’t do it as a recess appointment if the Senate is not in recess.”
Recess appointments — even when the Senate is in recess — shouldn’t be used as a matter of political expediency but only as a matter of necessity. In Federalist 67, Alexander Hamilton writes, “The ordinary power of appointment is confided to the President and Senate jointly...but as it would have been improper to oblige this body [the Senate] to be continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments…” (italics in original).
Note that Hamilton, a great advocate of executive power, does not say that the president should feel free to issue recess appointments to evade the Senate, circumvent the constitutional checks and balances, and install controversial nominees — as Obama did with Berwick. And he certainly does not say that the president is authorized to issue recess appointments when the Senate is in session — as Obama has now done.
Obama’s latest disturbing show of disrespect for constitutional forms is a reminder that the president’s most important responsibility is not, as Republicans often contend, to serve as commander in chief (although this too is a profound responsibility). Rather, the president’s most important responsibility is that which is suggested by his oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.” As the man vested with “The executive Power” (all of it), the president must, first and foremost, faithfully serve as the nation’s chief executive — ensuring that the laws and the Constitution are carried out as written. The very rule of law largely depends upon his fulfillment of that trust.
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