Feb 06 2012
In drafting the Constitution and establishing our nation’s system of government, the Founding Fathers carefully instituted a system of checks and balances among the three coequal branches of government — executive, legislative and judicial.
For example, although the Constitution vests in Congress “[a]ll legislative Powers,” it grants the president an important legislative role by requiring that all bills be presented for his signature, allowing him to veto legislation with which he disagrees.
Such overlapping power and required collaboration is a bedrock feature of the Constitution’s governing structure. I was therefore shocked and appalled when President Obama recently chose to ignore clear constitutional requirements in making a series of controversial executive appointments.
The Constitution authorizes the president to appoint federal judges and executive officers only where one of two conditions is met: The president’s appointment must either receive “the Advice and Consent of the Senate,” or he must make the appointment during a period in which the Senate remains in recess.
On Jan. 4, the president appointed Richard Cordray to head a new federal agency with oversight over the financial industry, and filled three seats on the National Labor Relations Board. The Senate approved none of these positions. In fact, Cordray was specifically rejected by a vote in the Senate last December. The NLRB appointments came just days after they were announced, leaving no time for the Senate to consider or approve the nominees.
The president argued the appointments were valid because he made them during a congressional recess. But, in fact, the Senate continued to hold sessions and did not take the formal steps necessary under the Constitution to be in recess.
Faced with this constitutional hurdle, the president claimed he could simply decide for himself whether or not the Senate was in recess. Such an unprecedented claim cannot pass a laugh test, much less withstand reasonable constitutional analysis. Nothing in our founding documents suggests the president could possibly possess this power.
To the contrary, the Constitution specifically requires that each chamber of Congress must consent to the adjournment of the other chamber if the adjournment is to last longer than three days. At the time of the appointments, the House had not consented to the adjournment of the Senate for a period longer than three days.
Sadly, since making these unconstitutional appointments, President Obama has sought to turn his actions into a partisan political issue. He suggests it was necessary, and even proper, to violate the Constitution because Republicans opposed (or may have opposed) the nominations.
Whatever one may think about the qualifications of his nominees, or even the legitimacy of the agencies to which they were appointed, the president cannot simply ignore constitutional requirements when he finds them inconvenient.
As a U.S. senator, I took an oath to uphold the Constitution. I am obligated to resist the action of any president, Republican or Democrat, who seeks to circumvent clear constitutional requirements and upset the critical balance between the coequal branches of government. Our Founding Fathers knew that this constitutional balance was necessary to protect each of us from the tyranny of a single branch or a single man.
As Americans, we must not allow the president to aggrandize his own power at the expense of the Constitution, and ultimately to threaten our liberty. The president is wrong to do so and I will take every opportunity to resist this unprecedented encroachment and to preserve our constitutional Republic.