Patrick Garry
A president/constitutional scholar who disregards the Constitution
By Patrick Garry
January 17, 2012

Politics in contemporary America does not operate in a realm of wide consensus, and there are few restraints on the conflict that so often erupts in the political arena. This full-bore political combat is on display in the current campaign for the Republican nomination for president, and it will be even more intense during the upcoming campaign between that nominee and President Obama. When it comes to political choices and policy agendas, disagreement and debate outline the necessary path of self-government. Politics is often a matter of power; but standing above politics, providing certain basic principles to govern that politics, is the Constitution.

Political beliefs and allegiances can vary widely, but a belief in and allegiance to the Constitution should never waver. Governing every president since George Washington has been the dictates of the Constitution and the rule of law. We expect constitutional obedience of every president, especially a president who is a self-proclaimed constitutional expert and professor. This is what makes so disturbing and destructive the Obama administration's disregard of the Constitution in connection with recent appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.

These appointments were the result of unilateral executive action, bypassing the constitutionally required Senate approval. In trying to justify that action, President Obama argues that the appointments were recess appointments that do not need Senate approval. But the Senate was not in recess — it was holding pro forma sessions. In fact, the appointments directly violated a constitutional principle specifically acknowledged several years ago by then-Senator Obama, when he voted to adopt a Senate practice of holding pro forma sessions every three days during holidays so as to prevent President Bush from making recess appointments. These pro forma sessions were instituted for the specific purpose of avoiding recesses, and hence recess appointments. And yet, now President Obama claims that those pro forma sessions, which under President Bush mandated presidential adherence to the appointments provisions of the Constitution, can be completely disregarded by his administration.

The appointments clause of the Constitution, requiring Senate approval of presidential appointments to certain offices, does not require obedience just because it is textually mandated in the Constitution. The constitutional appointments requirements serve a vital separation of powers role, providing an important legislative check on the exercise of executive power. For a president flagrantly to ignore such a check is to commit the kind of abuse of power about which the framers were so concerned.

None of the excuses offered by President Obama for why he ignored the constitutional appointments requirements can hold up under scrutiny. Pro forma sessions are not shams — in fact, during one such recent session, the Senate enacted President Obama's payroll tax holiday extension, one of his primary legislative priorities. Thus, if a pro forma session is a sham, then the tax extension is invalidly enacted and hence unconstitutional. Moreover, two of Obama's appointees to the NLRB had just been sent to the Senate two days before the holiday — so the argument can't be made that the Senate had proved unwilling to seriously consider the appointments, even if such an argument could negate a constitutional mandate.

The Constitution itself establishes the fact that the Senate was not in recess, thus requiring that President Obama seek its approval on appointments. Section 5 of Article I requires an adjournment by one house of Congress to be agreed upon by the other house. But prior to Obama's appointments, the Senate had not requested adjournment, nor had the House of Representatives agreed to any adjournment. Therefore, according to the very text of the Constitution, it was a legal impossibility for the Senate to be in recess when the unilateral appointments were made.

By making his appointments without Senate approval, by completely ignoring the Senate's mandated constitutional role in this process, President Obama violated judicial precedents and historical practices that have governed recess appointments for centuries. But this latest indifference to the checks-and-balances requirements of the Constitution follows a long pattern of attempted unilateral presidential governance. For instance, after Congress refused to pass legislation eliminating secret-ballot union elections, the Obama administration bypassed Congress and asked the NLRB to eliminate such elections through administrative action.

The Democratic Party never tires of reminding the country about the ways in which the Nixon administration violated constitutional principles and the rule of law. But the Obama administration — an administration supposedly steeped in constitutional expertise — has shown at least an equal (if not more flagrant) disregard for the Constitution. It has repeatedly shown that its political agenda supercedes the Constitution. Power trumps principle. President Obama believes so much in change that he is willing to alter even the Constitution to suit his political interests,

This attempt to politically out-muscle the Constitution is evident in the government's handling of a case recently decided by the Supreme Court — Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission. Despite a well-established First Amendment principle allowing religious organizations a ministerial exception to employment discrimination laws, the Obama administration sought to enforce those laws in a way that would deny the ability of a Lutheran evangelical school to hire and supervise its ministerial employees according to its religious beliefs. This ministerial exception is necessary to protect the internal governance of religious organizations from government control. But the Obama position was so radical in its argument that churches are no different from any other employer — so contrary to First Amendment law, so intent on subjecting constitutionally protected institutions to unrestrained state control, and so secularly indifferent to American religious sensibilities — that it provoked a rare unanimous rebuke from the Supreme Court, with all justices, even the Obama appointees, ruling that the government cannot tell religious organizations whom they can hire and fire as ministerial employees.

Instead of a presidential administration knowledgeable about and respectful of Constitutional law, we have an administration eager to elevate its raw partisan agenda above a Constitution that has governed the United States for more than two centuries.

© Patrick Garry


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Patrick Garry

Patrick Garry is a professor of law at the University of South Dakota, and Director of the Hagemann Center for Legal & Public Policy Research... (more)


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