Pres. Obama’s DOJ Throws out Decades of Precedent

This morning, the Justice Department’s Office of Legal Counsel (OLC) determined that President Obama was within his rights afforded by the Constitution to “recess” appoint Richard Cordray to head up the newly created Consumer Financial Protection Bureau (CFPB) and three members to the National Labor Relations Board (NLRB). Now this shouldn’t come at a surprise that President Obama’s DOJ would back him up, but what is strange is the fact that the decision was dated after the President made the appointments, even though he claimed they had okayed the decision beforehand. As Politico’s Josh Gerstein points out:

“One oddity about Seitz’s opinion is that it is dated Jan. 6, two days after Obama announced the appointments of Cordray and three members of the National Labor Relations Board. Officials said that, in keeping with common practice, the Justice Department shared its legal conclusions with Obama before he made the appointments, but more time was needed to polish the formal opinion.”

Interesting. This seems more like a blessing after the fact in order to protect the President, rather than an actual legal opinion. In addition to this, the decision leaves out the fact that, even though the Senate was in pro forma session, on December 23rd, the Senate passed the two-month payroll tax cut extension. Conveniently, the DOJ leaves out that period of time, as Todd Gaziano, the Director of The Heritage Foundation’s Center for Legal and Judicial Studies notes:

“Animating that central problem is the artificial premise of the question presented, which only considers the period from Jan. 3 through Jan. 23, and argues over and over again that the Senate could not conduct business during that period. (Note from DOJ to Sen. Harry Reid:  don’t provide consent to conduct any business during that period.)  But the pro-forma sessions began when most senators left town on Dec. 17.  Why not mention the even longer period of time, since that might ordinarily help the President’s argument?  The answer is on page 21, where the opinion has to acknowledges that twice during such “pro-forma” sessions, the Congress actually passed bills that became law (on Aug. 5, 2011 and Dec. 23, 2011).  Since the President signed these bills into law, it really had no choice but to admit that those pro forma sessions mattered.

“The not-too-deft argument in the OLC memo is that the President is free to take the Senate at its word that it would not conduct business during any period it sees fit except that the basis for that assumption also applied from Dec. 17 to Jan. 3. With unanimous consent, such business clearly can and was conducted during the period of time that OLC ignores.  Moreover, those facts defeat the repeated finding in the opinion that the Senate is not available to receive messages from the President and act on them.  The action on Dec. 23 proves beyond any doubt that they can receive such messages, loudly and clearly, and can act when they want to do so.  Their desire not to act cannot be converted so easily into an inability to do so.”

Mr. Gaziano goes on to explain:

“The opinion also does not fairly address the House’s refusal to provide the Senate permission to adjourn under Art. I, sec. 5, cl. 4 of the Constitution for more than three days or the effect of the clause of the Constitution that each House can determine its own rules, Art. I, sec. 5, cl. 2. The opinion’s citation of authority for the latter distinction involves the fundamental rights of individuals, and is clearly not on point.”

So not only does President Obama ignore the Constitution in an egregious power grab in order to appoint a man to a federal bureau that has unchecked powers and three members (two of which haven’t even provided the required paperwork for their background checks) to a national board that wants to force unionization, but the Justice Department is sanctioning this by supporting the President after the fact.

Americans need to wake up and realize that this kind of power grab is just the beginning. If this is what President Obama is doing in a re-election year, imagine what kind of brazen actions he’ll take during a lame duck presidency.

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