As published by the Deseret News:
This year America will celebrate the 225th anniversary of our Constitution. Its legal framework of checks and balances, enumerated powers, and individual rights has helped create and maintain the freest, most prosperous nation in history.
As a United States Senator, I pledged an oath to uphold and defend the Constitution. It is because of my fidelity to this oath and my commitment to protecting liberty through constitutional government that I recently made public my tremendous disappointment with President Obama’s decision to ignore the constitutional limitations of his office.
Earlier this year, the President made an appointment to head a controversial new agency known as the Consumer Financial Protection Bureau, and filled three vacancies at the National Labor Relations Board.
The Constitution specifies that the President may appoint nominees with the “advice and consent” of the Senate, and that in exceptional circumstances he may make appointments when the Senate remains in a lengthy period of recess. Neither of these constitutional requirements was satisfied at the time the President made the appointments.
In doing so, the President violated the fundamental system of checks and balances enshrined in our Constitution that protect against the dominance of one branch of government over another.
I take this violation seriously, as must all Americans. To allow the President to take power that does not belong to him without consequence is a step toward tyranny.
Not too long ago, Democrats understood the importance of preserving the Senate’s shared role in the appointments power. From December of 2007 to January of 2008, the Democratic-controlled Senate used procedural tactics to prevent President Bush from making recess appointments during the normal Christmas break.
On January 18, 2008, Senator Ben Cardin from Maryland in a press release wrote, “This rare procedural step has been necessary to prevent the Administration from making recess appointments to circumvent the Senate's responsibility of ‘advice and consent’ of senior government officials.”
Senator Jim Webb of Virginia said that such recess appointments would break with “a really important principle” and amount to “violating the intent of the [appointments] provision of the Constitution.”
Senator Byron Dorgan of North Dakota explained that President Bush wanted to make "appointments that could not possibly be confirmed by the Senate ... through recess appointments and we aren't going to let them do that."
These Democratic Senators were exercising an authority well within their rights as members of a coequal branch of government. They correctly concluded that the White House was attempting to thwart their constitutional authority and they took action to retain that power.
Even then-Senator Barack Obama once respected and defended the constitutional role of the Senate in the appointments process. “There are some who believe that the President, having won the election, should have complete authority to appoint his nominee,” the future president explained. “I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent.”
Today, the President cares nothing for the wisdom of the Founding Fathers nor feels restrained by clear constitutional limitations. Unlike President Bush, who made no such intrasession recess appointments, President Obama took the unprecedented step of flouting constitutional guidelines, as well as nearly 100 years of Senate procedure, and installed his appointments unilaterally.
This is a dangerous hypocrisy that threatens our liberty and I will not sit idly by and allow the President to trample the legitimate constitutional limitations placed on his office.
Ours is not a government of one. The Constitution isn't always efficient, but for nearly 225 years it has protected our God-given rights from would-be despots and self-styled monarchs.
It is our fundamental law and I am duty-bound to uphold it. The American people deserve better than to have the Constitution overlooked.