Recessing the Constitution

Obama’s recess appointments are symptoms of a larger constitutional problem.

W. James Antle, III
American Spectator

Last week President Obama filled some vacancies in the government by making several recess appointments. There was just one problem: Congress technically wasn’t in recess. The president bypassed a Senate that was in session, circumventing its constitutional advice and consent powers.

Nonsense, the president’s defenders respond. The senators weren’t really there doing anything. And the Senate Republican minority is obstructionist! Traditionally, however, adjournments lasting less than ten days have not been viewed as opportunities for recess appointments. More importantly, the Senate gets to decide when it is in recess, not the president.

Under Article I, Section 5 of the Constitution, the Senate has the power to write its own rules. Those rules allow a minority of senators to filibuster. Democrats did not take kindly to suggestions that the rules be rewritten when George W. Bush was in office. Democrats also kept the Senate in pro forma session to prevent Bush from making recess appointments, a maneuver now decried as a “gimmick.”…

…The office to which Richard Cordray has been dubiously appointed, head of the Consumer Financial Protection Bureau (CFPB), was created by a law that is itself manifestly unconstitutional. Dodd-Frank eviscerates the separation of powers and enables the federal government to seize financial firms with only the flimsiest checks. Former White House counsel C. Boyden Gray has co-authored a lengthy document enumerating Dodd-Frank’s constitutional violations.

Dodd-Frank vests so much power in unelected, unaccountable people who are not subject to Senate confirmation that the manner in which Cordray came by his job may as well be a trial run. But it is hardly the only law that is difficult to square with the enumerated powers the Constitution bestows upon the federal government. The very idea the United States is a federal constitutional republic rather than a unitary state has been lost…

Read the entire article at the American Spectator.

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