Fundamental to our constitutional republic is the axiom that we are a government of laws, not a government of men. The rule of law ensures that no man, not even the president of the United States, is above the Constitution.
Upholding the rule of law requires effort. It requires that citizens hold their elected officials accountable to the Constitution and that each branch of government guards against unconstitutional encroachments by the others.
On Jan. 4, President Obama bypassed the Senate’s constitutional right to advise and consent to nominees and instead, unilaterally made appointments to the Consumer Financial Protection Bureau and National Labor Relations Board. He purported to do so under the Constitution’s recess appointments clause, even though at the time of the appointments, the Senate was not in recess but rather was meeting approximately every 72 hours in pro-forma sessions.
Mr. Obama’s unprecedented and unconstitutional assertion of the recess appointment power would allow presidents of both parties to routinely circumvent the Senate’s advice-and-consent function and thus deprive the people’s representatives of an essential constitutional check on the executive branch. President Obama’s actions also violate the Constitution’s separation of powers. He has asserted the unilateral power to override Congress‘ own determination of when it is in session and thus has deprived that body of its constitutional right to make its own rules.
As citizens who enjoy the protections the Constitution affords, we cannot allow the president to ignore that document’s required procedures for making appointments. As a United States senator, I cannot allow the president to take a constitutional power that is not his.
In the past, I have given the president’s judicial nominees great deference. Both in the Judiciary Committee and on the Senate floor, I have voted in favor of the vast majority of the president’s nominees, including many with whom I fundamentally disagree. But I can do so no more. Recently I exercised my constitutional advice-and-consent function by voting against a nominee who otherwise might have received my support. Thirty-three other senators did the same.
The president cannot expect the Senate’s full cooperation at the same time that he does violence to Congress‘ constitutional prerogatives. In response to the president’s unconstitutional actions, the Senate must adopt a new threshold for confirming his nominees. Simply put, there is a new standard for Senate confirmations.
As citizens across the country learn more about the plainly unconstitutional nature of Mr. Obama’s Jan. 4 appointments, I am confident they will join in condemning this assault on the rule of law. I also am confident that in the coming days, many of my Republican colleagues and, in time, some of my Democratic colleagues will rise in defense of the Constitution and vote against the president’s nominees until such time that he takes actions to restore the Senate’s full constitutional right to advise and consent to his nominees.