A worrisome loss for Constitution

• Reprints

Updated: February 11, 2012 8:11AM

The White House and Democrats are taking a political victory lap over President Barack Obama’s “recess” appointment of a chief for a new consumer advocacy agency. It’s a triumph for the middle class, they crow. Actually it’s an abuse of executive authority that thinking Democrats ought to worry about, if not as an affront to the Constitution, then as a precedent that will come to haunt them when a Republican again occupies the Oval Office.

It’s not the first time Obama has skirted the Constitution in a way that augments presidential power at the expense of Congress, setting the stage for ever more authoritarian presidents to advance their agendas. Perhaps the most foreboding example was Obama launching an air war against Libya without consulting Congress.

However much Democrats may like Obama’s decisions, he violated constitutional process, and the success of our republic rests on respect for our Constitution, due process, and the separation of powers between the executive and legislative branches.

This issue arose again last week with Obama’s appointment of Richard Cordray as the first director of the Consumer Financial Protection Bureau. Republicans had blocked his appointment on the reasonable grounds that the agency was established free of any congressional oversight, meaning it was a bureaucracy insulated against the will of voters.

The bureau was created under the Dodd-Frank financial regulation act, a bill passed on party-line votes in 2010 when Democrats had overwhelming majorities in both houses of Congress. Like Obamacare, Dodd-Frank is testament to the reality that sweeping partisan legislation is simply a bad idea. The standoff over Cordray’s appointment could have been resolved through negotiations over the agency’s charter.

The Constitution requires the president to get the “advice and consent” of the Senate for important appointments. It also authorizes the president to “fill up all vacancies that may happen during the recess of the Senate.” That, of course, was written at a time when the fastest mode of travel was the horse and when the Senate was in recess for half a year or more.

Obama unilaterally declared that the Senate was in recess when it in fact wasn’t. Republicans had succeeded in keeping the Senate in pro forma sessions over the holidays. This was a tactic that Democrats used to keep President George W. Bush from making recess appointments, and Bush honored the Constitution and recognized the authority of Congress to determine when it is in recess. But not Obama.

It was Senate Majority Leader Harry Reid who used pro forma sessions against Bush but, according to the New York Times, he backs Obama. An officer of the Senate who won’t defend the prerogatives of the chamber is not fit to be one of its leaders.

Senate obstruction of appointments is a legitimate problem that plagues Republican and Democratic presidents. But shredding the Constitution is not the answer.

This issue may end up before the U.S. Supreme Court. Key questions: Under separation of powers, does the president or Congress determine when the Senate is in recess? Does the plain language of the Constitution limit recess appointments to “vacancies that may happen during the recess”? (Emphasis added.) Most important, has Obama eviscerated the Senate’s constitutional authority to advise and consent on presidential appointments?