04 January 2012

Some Political Animals Are More Equal Than Others

President Barack Obama is poised to make a recess appointment to name Richard Cordray as the director of the newly formed Consumer Financial Protection Bureau. According to the Constitution, Executive Branch appointments must receive the advice and consent of the Senate, unless it in recess so the President can make a temporary recess appointment.

In this case, the problem is that the Senate is technically still in session, albeit in a pro forma manner. To avoid going into recess, the Democrat controlled Senate has several members briefly meeting every few days. But Obama considers these legislative sessions as a gimmick thus he claims the power to make a short term appointment for two years.

This Obama ukase is problematic for a variety of reasons. Firstly, the President’s assessment that pro forma legislative sessions are a gimmick ignores the constitutional tenant of “Separate But Equal” branches of government.  If the Obama Administration truly believes that the senate is not in session than adjudicate it in the courts, which are supposed to decide constitutional matters.

Secondly, President Obama is insisting upon making a two year temporary appointment as a recess appointment. But Cordray would not be serving at the pleasure of the Obama Administration as a political appointment but as part of an independent government agency so would serve on even if Obama loses the upcoming election in November.

Moreover, Obama’s questionable appointment circumvents the will of the Senate.  Republicans have made their objections to the CFPB appointment plain.  While Democrat caucus can count on 53 votes, this appointment would be unlikely to pass a cloture motion which requires 60 votes, if we followed the customary rules and procedures.

When President Obama approved the 2011 National Defense Authorization Act while on his extended Christmas vacation in Hawaii, he also included a signing statement which suggests that his Administration will ignore sections of the law that Obama had just signed.  Other Presidents have used signing statements to note their objections to provisions of laws that they are enacting. In 2006, an  American Bar Association Blue Ribbon Task Force considered Presidential Signing Statements as being something that undermines the rule of law and the constitutional separation of powers.  Such thinking must have influenced the former lecturer at the University of Chicago Law who became Senator Barack Obama (D-IL) when he objected to President George W. Bush’s signing statement in December 2007.  But where you stand is where you sit.

However, Obama’s NDAA signing statement differs from his predecessor.  Rather than just objecting to the provision, President Obama declared:

Sections 1023-1025 needlessly interfere with the executive branch's processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Effectively, this allows Defense Secretary Leon Panetta to provide whatever procedure he wants to invoke, because the President said so. Who needs Congress?   This is not an isolated iconoclastic act by the Obama Administration, as President Obama instructed Attorney General Eric Holder not to defend the Defense of Marriage Act (DOMA)  as he believes that the law is unconstitutional.

Why is the  Cordray appointment being made today?  Well, Mr. Obama has arranged a trip to Shaker Heights, Ohio.  Surely, this visit to a battleground state and circumventing the “Do Nothing” Congress was customary operating procedure and not a veiled re-election campaign event paid for with tax dollars.

There are some serious political and policy objections to the Consumer Financial Protection Bureau which were being waged in Congress.  But this Obama appointment threatens our constitutional order. Granted, there were some stumbles administering the Presidential Oath of Office to Barack Hussein Obama so the oath was administered again later, he did vow to “preserve, protect and defend” the Constitution of the United States.  Systematically circumventing the laws and established governing procedure does not seem consistent with that oath.

 In 1945, George Orwell (nĂ©  Eric Blair) wrote Animal Farm, an allegory about totalitarianism which famously posits “All animals are equal but some animals are more equal to others.”   But the way the Obama Administration is governing, political animals between the beltways should  brush up on progressive President Woodrow Wilson’s favorite novel  Philip Dru Administrator: A Story of Tomorrow which makes dictator into a good word.

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