Barone: Operating above law
Presidents’ State of the Union addresses are delivered in the chamber of the House of Representatives in the Capitol. The classical majesty of this building where laws are made symbolizes the idea that we live under the rule of law.
Unfortunately, the 44th president is running an administration that too often seems to ignore the rule of law.
“We can’t wait,” Barack Obama took to saying after the Republicans captured a majority in the House and refused to pass laws he wanted. He would act to get what he wanted regardless of law.
One example: his recess appointments in January 2012 of three members of the National Labor Relations Board and the head of the Consumer Financial Protection Bureau.
Last month, the U.S. Court of Appeals for the District of Columbia ruled unanimously that the NLRB recess appointments were unconstitutional.
The decision, written by Judge David Sentelle, noted that the Constitution speaks of “the recess,” not “a recess,” and reasoned that it could only be referring to the recess between annual sessions of Congress.
Obama, like many presidents before him, interpreted the phrase as referring to any recess during which Congress is not in session. But he went one step further.
When Harry Reid became Senate majority leader in 2007, he started holding pro forma meetings of the Senate every three days and stating that the Senate was not in recess. George W. Bush, who had made recess appointments before, stopped doing so.
Bush took the view that, since the Constitution says that each branch of Congress makes its own rules, the Senate was in session if the Senate said so. Obama took the view that he would decide whether the Senate was in session. Who cares what the Constitution says?
As Sentelle pointed out, Obama’s view would entitle the president to make a recess appointment any time the Senate broke for lunch. “This cannot be the law,” the judge wrote.
Critics of his decision argue that under it the recess appointment power would be vanishingly small. But under Obama’s view, the Senate’s power to advise and consent could effectively vanish.
The Framers contemplated that the Congress would take long recesses (as for many years it did) and that it could take months for senators to return to Washington to act on appointments.
It’s plausible that the Framers would have considered recess appointments unnecessary in an era of jet travel. It’s not plausible that they would have approved of getting rid of the Senate’s power to vote on appointments altogether.
Meanwhile, decisions of the NLRB and the CFPB are in legal limbo, pending a Supreme Court decision. Hundreds of thousands of people and are affected and millions of dollars are at stake. There is a price for not observing the rule of law.
There are other examples. For several years, the Obama administration has refused to obey a law requiring the president’s budget to be submitted on a certain date. As Budget Director, Treasury nominee Jack Lew refused to obey the law requiring him to issue a report in response to the trustees’ report on Medicare.
During the 2012 campaign, the Pentagon told defense contractors not to inform employees that they may be laid off if the sequester took effect as required by the WARN Act.
They were even told that the government would pay any fines for not complying. What law authorizes that?
Similarly, Health and Human Services has stated that the federal government can fund health insurance exchanges run by the feds for states that refuse to create their own exchanges. But nowhere does the Democrats’ hastily crafted Obamacare legislation say that.
In spring 2009, we got our first glimmers of this modus operandi. In arranging the Chrysler bankruptcy, administration officials brushed aside the rights of secured creditors in order to pay off the United Auto Workers.
University of Pennsylvania law professor David Skeel pointed out that this violated the standard rules of bankruptcy law established, interestingly, during the New Deal.
“We have just seen an episode of gangster government,” I wrote at the time. “It is likely to be a continuing series.”
It looks like that’s one prediction I got right. This president, like all his predecessors since Woodrow Wilson started delivering these speeches in person, looks magnificent in the temple where laws are made. But he doesn’t seem to consider himself bound by them.