Executive Orders, Nullification, and Recess Appointments
With no political capital left and much of his legislative initiatives dead in Congress, President Obama's administration recently announced that he intends to use executive orders to advance his agenda. by Kenn Jacobine
(libertarian)
Wednesday, February 17, 2010
According to White House chief of staff Rahm Emanuel, "We are reviewing a list of presidential executive orders and directives to get the job done across a front of issues". Those issues include everything from budget commissions to environmental law to health care funding.
Of course, executive orders are nothing new. They have been around since at least Lincoln's so called "Emancipation Proclamation" and probably before that. George W. Bush signed the most ever as president and was rightly criticized by Obama in his campaign for president. This is key because it doesn't matter which party controls the White House.  When push comes to shove and the president can't get his way he resorts to this underhanded tactic.
But, it's more than underhanded; it is downright unconstitutional. As schoolchildren, we are all taught that our federal government is composed of three branches. The legislative makes the laws; the judicial judges the laws for constitutionality; and the executive acts as the top cop by enforcing the law. Congress has power to legislate, not the president.  The closest he/she comes to this power is his/her ability to advise Congress, "and recommend to their Consideration such Measures as he shall judge necessary and expedient" .
The Founders knew that separating the powers of government into three different branches would prevent any one branch and/or person from becoming too powerful – thus potentially infringing upon the rights of the citizenry. Through executive orders presidents circumvent the process reserved to Congress because they have the force of law and at times have horrendously violated the rights of American citizens. For instance, Franklin Roosevelt issued executive orders that deprived Americans of their property without due process of law by seizing their gold during the Great Depression and that unconstitutionally suspended the writ of habeas corpus by interning Japanese-Americans during World War II. More recently, George W. Bush issued an executive order that allowed his administration to unconstitutionally wiretap the phone conversations of Americans without a warrant. Now, Obama, like his predecessors, is unable to get his unpopular policies through Congress, so he will violate the supreme law of the land by usurping the powers of another branch of government.Â
But, the current occupier of the Oval Office is not content with stopping there. His aides last month indicated that he will reserve the right to ignore enforcing parts of bills he considers unconstitutional. This is reminiscent of Bush's statement after signing an anti- torture bill that he would interpret the new law in any way he chose. There are several things wrong with this position. First, the Supreme Court has the power to declare all or parts of laws unconstitutional. Second, if the president doesn't like a part of a bill then his constitutional recourse is to veto it and hope Congress amends it to his liking. Third, jury and state nullification are considered outside the law. The president is essentially proposing executive nullification – the same thing. Why is there a double standard? Sorry Mr. President, you do not have a line item veto power. You really must accept all or nothing when it comes to congressional acts. Not doing so is unconstitutional and a usurpation of the High Court's power.
Lastly, this president is also attempting to make unconstitutional recess appointments. Here again presidents have done this in the past. The practice originated in the good old days when Congress was only in session for part of the year. Read literally, the phrase in Article 2 Section 2 of the Constitution giving the president this power reads "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session". Key to the power is the simple phrase, "all vacancies that may happen during the recess of the Senate". Obama's current vacancies happened when the Senate was in session, thus if he waits until they recess he is usurping the power of the Senate to advise and consent to his nominations. When Bush used the power to make John Bolton ambassador to the United Nations, then Senator Obama called Bolton "damaged goods". Not only is Obama being hypocritical, he again is attempting to commandeer powers that belong to another branch of government.
Make no mistake about it, over time an imperial presidency has been built in Washington by both Republicans and Democrats. Executive orders, presidential nullification, and unconstitutional recess appointments have been used by presidents to achieve objectives they could not get legally through Congress. It has made a mockery of the Constitution and at times has had serious consequences for American citizens. Congress must reassert its authority over these matters. Perhaps the Democrats with huge majorities in both chambers can set the example and stand up to one of their own in his quest to carry on the unfortunate tradition.      Â
Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.
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The current series of executive orders goes back to #1 issued by Lincoln on 15 April 1861 calling up the militia of several states for 90 days to suppress the "insurrection" by the states which had exercised their constitutional power (see 10th Amendment) to secede. There were other executive orders by other presidents before Lincoln, but it is arguable that the current tyranny of the executive branch dates back to his military conquest of the Confederacy. Lincoln was the first emperor.
Your idea that a vacancy that continues through a Congressional recess is not a vacancy that occurs during the recess is interesting. Certainly, it does not occur right away. But, pause a moment, and the vacancy is still occurring after Congress has gone into recess. Perhaps Congress should exercise its power to stay in session? Or they could exercise their power to hold, e.g., Dennis Blair on charges of treason - making war on the people being arguably making war on the United States.
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