Presidents, Congresses and Supreme Courts of the United States have all acted unconstitutionally at times throughout our history. The most recent examples before President Barack Obama and the Democrats wielded all executive and legislative power in 2009-10 include the 2002 McCain-Feingold restrictions of free First Amendment political speech passed by Congress and signed by President Bush; and the Supreme Court’s 2005 Kelo decision that eviscerated the public-use-only-takings requirements for just compensation under the Fifth Amendment.
Thankfully, the Supreme Court invalidated most of McCain-Feingold in their 2010 Citizens United ruling but given the “finality” of the “last resort” status claimed by the Judicial Branch, governments retain the power to take your property and sell it to another private party; much as after Roe v. Wade babies in the womb have no right to life.
But when it comes to executive overreach not collaborated in by the legislature, such usurpations have been rare in American history. Arguably the last (again, before Obama) was when President Harry Truman attempted to seize the steel industry as Commander-in-Chief in direct opposition to Congressional law. The Supreme Court ruled against Truman, despite admitting the broad powers of a Chief Executive at war, because of legislation directly on point in opposition to the president. Other arguable such acts occurred when President Lincoln suspended the Writ of Habeas Corpus during the Civil War and when FDR put Japanese-Americans in camps during WWII. But at least all of the above had war as an excuse.
Rule as by a king only became the default modus operandi of a President of the United States when Barack Hussein Obama defied a federal court invalidation of his post-BP-oil-spill, deep-water drilling moratorium; unilaterally removed welfare-work requirements; defied Congress’s rejection of the Dream Act by granting amnesty to young illegals; and regularly made up Obamacare as his or the public mood fit.
George Will advises that the Supreme Court will hear oral arguments tomorrow on Obama’s outright defiance of the U.S. Senate’s right to make its own rules, declare recesses and advise and consent before certain executive appointments:
On Monday, the Supreme Court’s nine fine minds will hear oral arguments about the meaning of “the” and “happen.” What they decide could advance the urgent project of reining in rampant executive power.
“The president,” says the Constitution, “shall have the power to fill up all vacancies that may happen during the recess of the Senate” (emphasis added). Monday’s case concerns whether Barack Obama made recess appointments when the Senate was not in recess, and made them to fill vacancies that did not happen during a recess.
In 2012, the National Labor Relations Board (NLRB) rendered a decision adverse to a soft-drink bottler in Yakima, Wash. The bottler asked the court to declare the NLRB’s intervention unlawful because the board did not have a legitimate quorum, three members having been installed by Obama when the Senate was not in recess as the Framers understood this term.
Republicans, wanting to block some Obama nominations, used a practice Democrats used in 2007 when they controlled the Senate and wanted to block some George W. Bush appointments. Operating under a unanimous-consent agreement — no Democrat objected — pro forma sessions occurred Jan. 3 and Jan. 6 of 2012. Obama declared the Senate in recess Jan. 4 and made his NLRB appointments, thereby disregarding the Senate’s determination of the rules of its proceedings and the settled practice both parties have used to remain not in recess even when most senators are away.
The Obama administration argues that the word “happen” is a synonym for “exist.” And it rejects the argument that an intra-session Senate break is a synonym for “adjournment,” not “recess.” This, however, ignores the reasonable reading of the definite article: Recess appointments fill vacancies that “happen,” meaning come about, during “the” recess of the Senate — the one break that occurs between sessions, which, until the Civil War, usually lasted only three to six months.
His administration argues that “at least 14 presidents have, collectively, made at least 600 civilian appointments (and thousands of military ones) during intra-session recesses.” But Obama’s action regarding the NLRB is characteristic of his aggressive expansion of presidential power. He is the first president to make recess appointments when the Senate was convening pro forma sessions every three days, and he has articulated an anti-constitutional defense of his aggression:
“I refuse to take no for an answer. When Congress refuses to act . . . I have an obligation as president to do what I can without them.”
If he really can refuse a “no” answer, then the Senate’s role in the appointment process is vitiated. Now the court should apprise him of what he cannot do without Congress.
Often, cases of this kind are punted by the Court on the grounds that they pose “political questions”; but given the consequence of an essentially unchecked appointment power unless Obama is reigned in from continually giving the finger to the Constitution, we expect the five conservatives on the court to invalidate the in-session appointments. Even if it is clear that both parties have violated the true intent of the recess appointment clause over the years.