5 years ago
Hat tip to Powerline and its post concerning the illegal and un-Constitutional recess appointments made by Presidente (as in Banana Republic) Obama, quoting an article by former Judge Michael McConnell:
On January 10, I published an op-ed in the Wall Street Journal stating that I could see no plausible legal argument to support President Obama’s recent recess appointments to the Consumer Financial Protection Board and the National Labor Relations Board. I noted that the Administration had not relied on any opinion from the Office of Legal Counsel, and inferred that it must not have obtained such an opinion. http://www.advancingafreesociety.org/2012/01/10/democrats-and-executive-outreach/
Today, January 12, 2012, the Administration released an Office of Legal Counsel opinion, dated January 6, opining that the recess appointments were constitutional. The Opinion concludes that the pro forma sessions of the Senate conducted every three days during the December and January holiday are not sufficiently substantive to interrupt a Senate recess, meaning that the Senate was in recess from December 17 well into January.
I compliment the Administration for releasing the opinion, while still wondering what was their reason was for delay. It is reassuring that in this instance the Administration followed proper legal channels before taking a controversial constitutional position at odds with recent precedent (precedent established in 2007 by Senate Democrats, including then-Senator Obama).
I have not had time to give careful study to the 23-page OLC Opinion, but my preliminary reaction is not to be convinced. The Opinion makes arguments that are not frivolous, but it seems to me the counterarguments are more powerful.
Please read the full article concerning the merits of the OLC Opinion and McConnell’s counter-arguments. My take on this, however, is that McConnell gives El Presidente too much credit when he concludes that the Administration “followed proper legal channels before taking a controversial constitutional position at odds with recent precedent…” It is quite clear that this Administration has no compunction whatsoever about hiding documents from Congressional inquiry, lying to Congress, ignoring the Constitution and violating existing law. Why should they bother to follow “proper legal channels” now? It is far more likely that the public outrage about the appointments caught El Presidente by surprise and then some DOJ attorney was given a post haste assignment to cobble together a 23 page justification, back dating it for good measure.
More disturbing, however, is the fact that some commenters are pointing to these recess appointments as an indication that Obama is trying to subvert the foundation of America as a nation of laws, not men.
I must point out to the contrary that, sadly, we ceased being a nation of laws quite some time ago, the precise moment being up for an interesting but largely academic debate. Presidente Obama does not get credit for transforming America into a nation run by fiat, he has merely taken advantage of the many opportunities presented to him by the long erosion of Constitutional limitations.
It does not take, for example, a Ron Paul to point out that when the Commerce Clause can be re-written to mean whatever Congress and the President want it to mean, the Constitution ceases to be an effective brake on power. When whole privacy rights are invented out of thin air and “penumbras” the Supreme Court ceases to function in its Constitutional role.
We have been living in an era for quite a few generations now that does not take the Constitution seriously. To those with power and ambition, it is a quaint relic that can be safely ignored or re-engineered. To those standing in the way of such abuse, the Constitution is an aging, impotent parent that lacks any means of restraining the nefarious acts of its children. The Tea Party Movement has been a sort of cry of frustration from the younger siblings, an appeal to somehow revitalize the Constitution, but just as a parent, once pushed aside and mocked, cannot return to authority, so, too, the Constitution is beyond recall absent some miraculous Reawakening.
It is tempting to take comfort by imagining a day when a Republican is in the White House and Senate Democrats will be victims of the same, illegal “recess” appointments. This is illusory. For one, Republican presidents, by and large, lack the kind of insolence and audacity to make such, obviously illegal appointments. Call it a weakness or a virtue, either way it won’t happen. Second, even if a Republican president might take such a step, there is no, real comfort in seeing the country plunge further into the swamp of lawlessness.
In times such as these, the only course is to try to limit the pace of lawlessness while preparing for the consequences sure to come.