The “preservation of liberty requires that the three great departments of power should be separate and distinct.” Those words written by James Madison in the Federalist Papers laid the groundwork for one of the cornerstones of our structure of government.
Our Constitution creates a framework for American government that states that the executive, legislative, and judicial powers should be divided into different branches and not concentrated in one. These separate branches adhere to a powerful system of “checks and balances” that helps protect our rights to life, liberty and the pursuit of happiness, and are needed in order to prevent tyranny and promote good government. Our Founders established this deliberate, intentional process as part of our DNA as a nation - to ensure the protection of the individual liberties that make the American experiment unique.
So when President Obama recently made an unprecedented decision to sidestep the Senate confirmation process to appoint a Director of the Consumer Financial Protection Bureau (CFPB) as well as three members of the National Labor Relations Board (NLRB), it raised red flags for constitutional scholars and citizens alike.
While recess appointments by sitting presidents have become the norm, President Obama has gone where other presidents have not. His appointments took place while the Senate was in a pro forma session and the House had not consented to a Senate recess of more than three days, an action seen as a blatant attempt to diminish legislative power. The Justice Department has argued that pro forma sessions are not technically sessions because Senate rules bar any business to be conducted during that time.
However, a Wall Street Journal columnist points out “The Senate did exactly that to pass Mr. Obama’s payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can’t be true.”
If President Obama’s appointments are upheld, it could give a sitting president unchecked power in naming any person to a position in federal government leadership, effectively erasing the “advice and consent” clause from the Constitution that the Founders thought necessary for good government and to prevent the emergence of a tyrant.
Further political tensions surrounding the appointments illustrate precisely what the “advice and consent” clause was intended to prevent. The Consumer Financial Protection Bureau, which can potentially affect almost every facet of American business, currently has no Congressional oversight and is not even subject to the appropriations process. The Senate confirmation process is the strongest form of oversight for the CFPB.
The NLRB has come under a high level of scrutiny for its overtly political actions and exertion of power over American businesses, such as their complaint against Boeing last year for the company’s decision to relocate its business to right-to-work state South Carolina. President Obama notified Congress of his intent to nominate the three individuals to the Board on December 15. Yet, the Senate did not have time to hold one confirmation hearing on the individuals before the President made his “recess” appointments.
Neither an executive agency nor the President should be immune from the checks and balances our Founders intended. Preventing the Senate from engaging in an honest and open debate over the appointees is an affront to the separation of powers that has been wonderfully successful in ensuring individual rights and liberties for over 200 years.
Earlier this week, I joined several of my colleagues in sending a letter to President Obama expressing our concerns over this disregard of Constitutional checks and balances. The letter states:
“These appointments establish a dangerous precedent that threatens the confirmation process and our system of checks and balances embedded in the Constitution. We stand committed to undoing the damage these appointments have done to our republic and expect that these appointments will be determined to be unconstitutional and invalidated by both the courts and the American people.”
Additionally, I co-sponsored a House resolution, disapproving of the President’s “recess” appointments. The text of that resolution is available here.
The world’s longest surviving written charter of government will never be broken down from the outside. If it is broken down, it will be because we allowed it to be compromised. Let us stand committed to ensuring the Constitution remains, as Henry Clay said, “for posterity - unlimited, undefined , endless, perpetual posterity.”