National Review Online: Op-Ed by Sen. Lamar Alexander: Obama Undermining Checks and Balances in Our Constitution
Posted on February 3, 2012
By Sen. Lamar Alexander
Last week we Republican senators had an extraordinary experience that millions of Americans have had and will have in the future: We spent a day at Mount Vernon, George Washington’s home, which is not more than about 40 minutes from the nation’s capital.
Even in the middle of winter, it is a beautiful, historic setting. It is hard to imagine why George Washington and Martha Washington would ever want to leave the place.
But despite the beauty of the place and Washington’s love for farming, he was gone from Mount Vernon for eight and a half years during the Revolutionary War. He never went home; he was always in the war. Even when he was president of the United States for eight years, he was only at Mount Vernon ten times during that time; and after the presidency, of course, he soon died. So he gave up quite a bit to be president.
There were other things that impressed me about our visit to Mount Vernon. One was the reminder that our revolution was a revolution against a king. George Washington, as commander-in-chief of the Continental Army, led a fight for independence from a king who, the signers of the Declaration of Independence stated, had a “History of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”
Those were our revolutionary founders talking. As president of the Philadelphia Convention, George Washington presided over the writing of the U.S. Constitution which emphasizes, if it emphasizes any one word, the idea of “liberty” in creating the system of government we enjoy today.
Another quality of George Washington’s of which we were reminded that would be good for us to think about today is his modesty and restraint.
Washington must have had remarkable presence. He never had to say very much, apparently, to command the attention and respect of his countrymen. He likely could have been general of the army as long as he wished and president of the United States as long as he wished, but he chose not to do that.
It was he who first asked to be called simply Mr. President, rather than some grand title. It was Washington who gave up his commission when the war was over, and it was Washington who stepped down after two terms and went home to Mount Vernon. In fact, that aspect of his character was imprinted upon the American character — that modesty and restraint on the part of the executive branch and a recognition that our system depends absolutely on checks and balances.
I am struck by that attitude and the different attitude I see in the administration of President Obama, which has shown disregard for those checks and balances and the limits on presidential power that our Founders and George Washington felt were so important.
This administration, over three years, has been arrogating more power to the executive branch of government and upsetting the delicate balance, which the Founders created for the purpose of guaranteeing to each of us as individuals the maximum amount of liberty.
I remember Senator Byrd saying time and time again that the purpose of the Senate, more than anything else, was a restraint upon the tyranny of the executive branch of government. That is our purpose as a Senate.
This president’s executive excesses were first illustrated by the creation of more czars than the Romanovs had.
We have had some so-called czars in the White House for a long time — the drug czar, for example. But now we have approximately three dozen of them. These czars duplicate and dilute the responsibilities of Cabinet members; they make it harder for the Congress to have a supervisory role over exactly what they are doing. It is not only anti-democratic, it is a poor way to manage the government.
Equally disturbing to me has been this administration’s use of regulation and litigation to bypass the Congress and the will of the people when the Congress has a different point of view.
This was the case with the National Labor Relations Board and their decision in the Boeing case; which has now apparently been resolved but which was an enormous abuse of power, in my opinion.
The president has taken to blaming almost everyone for the problems we see in our lives today: First, it was President Bush, then it was the banks, then it was business, then it was the insurance companies, then it was Wall Street, then it was 1 percent of us, and now it is the Congress, which of course is in a government that is primarily run by the president’s own political party.
The president has taken to saying in his campaign speeches — and his State of the Union Address the other day –“If Congress won’t act, I will,” and he has begun to show that it is no idle threat.
Now, on top of these other abuses, his recent appointments to the National Labor Relations Board and the Director of the Consumer Financial Protection Bureau to head a new and unaccountable agency, have undermined the checks and balances that were placed in our Constitution and that George Washington so respected.
The Senate has always been the place that has insisted upon checks and balances and the liberty of the people as guaranteed by those checks and balances. The president’s recent recess appointments have shown disregard for possibly the best known and most important role of the Senate: its power of advice and consent of executive and judicial nominations as outlined in Article II, Section 2 of the Constitution.
These actions — four appointments during a period of time when the Senate, in my opinion, was in session — fly in the face of the principle of separation of powers and the concept of checks and balances against an imperial president.
Let’s look for a moment at the history and precedents of recess appointments. The exact length required for a recess is not defined in the Constitution, but according to the Congressional Research Service “it appears that no president, at least in the modern era, has made an intra-session recess appointment during a recess of less than ten days.”
Both parties have relied upon the adjournment clause in Article I of the Constitution to argue that the absolute minimum recess period would conceivably be three days.
We can also look at the number of recess appointments made by recent presidents. As of January 23 of this year, President Obama had made 32 recess appointments, all to full-time positions. At the same point in time in his first term, President Clinton had made nine recess appointments to full-time positions. President Bush, at about the same time, had made 35.
So they all made appointments while the Senate was in recess. That is provided for specifically in the Constitution as something the president can do. But President Clinton never did it when Congress was in recess for less than ten days. President Bush never did it when Congress was in recess for less than eleven days.
Now, unfortunately, President Obama has broken that precedent and made four appointments when we were in a recess of less than three days.
Why is that important? In 2007, the current majority leader of the Senate, Harry Reid, decided the Senate did not want President Bush making recess appointments; that is, making appointments while the Senate wasn’t in session. So the Senate refused at that time to enter into prolonged recesses. They invented the idea of pro forma recesses every three days. President Bush strenuously objected to that, but he respected it. He respected the constitutional authority of the Senate under Article I, Section 5 to determine when the Senate is in session.
On November 16, 2007, Senator Reid said: “With the Thanksgiving break looming, the administration has informed me that they would make several recess appointments.”
Senator Reid didn’t like the idea of recess appointments any more than we do, so he continued, “As a result, I am keeping the Senate in pro forma to prevent recess appointments until we get back on track.”
And on July, 28, 2008 he said, “We don’t need a vote to recess. We will just be in pro forma session. We will tell the House to do the same thing.”
The president is restricted, as Senator Reid indicated, by Article I, Section 5 of the Constitution, which states that “neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
Last December when the House and Senate agreed to adjourn, the speaker — a Republican — and the majority leader here — a Democrat — agreed that the two chambers would hold pro forma sessions for the express purpose of not going into recess. Yet the president went ahead and made his appointments. This is a dangerous trend.
The major issue before our country is the Obama economy. That is what we will be talking about more than anything else in an election year. But liberty is the defining aspect of the American character. If the president’s current actions were to stand as a precedent, the Senate may very well find that if it takes a break for lunch, the country will have a new Supreme Court Justice when it comes back.
Because we believe in the importance of that constitutional system, all of us on the Republican side insist on a full and complete debate on this issue. We will file amicus curiae briefs in all of the appropriate courts and we will take this issue to the most important court in the land and that is the court of the American people on Election Day.
I do not suggest that the president will find, or even should find, his relationship with Congress to be easy or simple. George Washington did not. President Washington once came up here to discuss a treaty with senators and became so angry that he said, and this was Washington’s word: I’ll be “damned” if I go there again.
The separation of powers does not mean an easy distribution of powers, but it is essential to the American character. We should remember that. A short trip to Mount Vernon would remind us of that. The president’s recess appointments not only show disregard for the Constitution, they show disregard for every individual American who chooses liberty over tyranny, president over king.