A long overdue court ruling yesterday exposed this president’s contempt for constitutional limits, as a Wall Street Journal editorial Friday evening explained (bolds are mine):
Obama’s Abuse of Power
An appeals court says his recess appointments are unconstitutional.
President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President’s non-recess recess appointments are illegal and an abuse of executive power.
On January 4, 2012, Mr. Obama bypassed the Senate’s advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we’ve supported that executive authority.
But here’s the Obama kicker: He consciously made those “recess” appointments when the Senate wasn’t in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn’t make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.
… In the 46-page opinion, the three-judge panel said that “not only logic and language, but also constitutional history” reject the President’s afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.
… Judge (David) Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”
In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. …
… The court … makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama’s imperial overreach has invited the courts to re-examine the Constitution’s Appointments Clause and tilt the balance of power back toward the Senate.
… the ruling potentially invalidates dozens of NLRB decisions since the illegal recess appointments were made.
… The decision also means that Mr. Cordray has no authority to run the consumer financial bureau, which has been busy issuing thousands of pages of regulations since he was illegally imposed in the job. Mr. Obama renominated Mr. Cordray this week, which is an insult to the Senate and after this ruling to the Constitution too.
One question is whether Mr. Cordray can legally keep accepting his paycheck. Especially as a former Attorney General in Ohio, he ought to resign for having agreed to play along as a constitutional usurper.
Cordray should resign, and Congress should claw back his pay — immediately.
This ruling is so strong it makes one wonder — for only a moment — if the Obama administration will choose not to contest it, as a Supreme Court affirmation, which would seem to be very likely on appeal, would cement the DC Circuit Court’s ruling into place.
That’s not going to happen. Team Obama has too much political capital invested in the unaccountable consumer financial bureau, and couldn’t stand the heat from the left if it caved.