Obama Skirts the Democratic Process
The president has exceeded his powers, and the GOP won’t stop him.
By Andrew C. McCarthy
President Obama has fulfilled a second Tom Friedman fantasy — the first being that he is, in fact, President Obama. “I have fantasized#…#that, what if we could just be China for a day,” the New York Times star columnist gushed for his ponderous fellow travelers on Meet the Press. “I mean where we could actually, you know, authorize the right solutions.”
It was May 2010, not long after Obama and a Congress dominated by Democrats had rammed through Obamacare, the most sweeping government usurpation of private industry and individual liberty in American history. Soon they’d be adding Dodd-Frank’s paralyzing intrusion into the financial sector. Yet, despite the shock and awe of hope and change, here was the Progressive Poobah, grousing that “my democracy” was failing “to work with the same authority, focus and stick-to-itiveness” as a totalitarian Communist dictatorship. After all, unburdened by our remnants of free-market competition, by the gridlock and sausage-making of two-party politics, the Chicoms produce trade and budget surpluses, state-of-the-art airports, and enviro-friendly high-speed rail. All we can manage, “on everything from the economy to environment,” Friedman complained, are “suboptimal solutions” — apparently not to be confused with the optimal Chinese menu of forced abortions, religious repression, secret police, kangaroo courts, and air you could cut with a chopstick.
#ad#Friedman is surely smiling today. So, we can assume, are other leftists, such as Peter Orszag, Obama’s former budget-overrun director, and Bev Perdue, the governor of North Carolina. Right after the midterm shellacking that swept Republicans into control of the House — a roadblock that has stymied some, but by no means all, of Obama’s transformational agenda — they said aloud what other Democrats were thinking: America’s problem is too much democracy. This week, the president solved that problem, shoving another page of the suboptimal Constitution through his made-in-China shredder.
In sum, Obama dissolved the separation of powers, the framers’ ingenious bulwark against any government branch’s seizure of supreme power — and thus the Constitution’s bulwark against tyranny. The president claims the power to appoint federal officers without the Senate’s constitutionally mandated advice and consent. He does so by claiming unilateral powers to dictate when the Senate is in session, a power the Constitution assigns to Congress, and to decree that an ongoing session is actually a recess. This sheer ukase, he says, triggers the part of the Constitution we’re keeping because he likes it — viz., the executive power to fill vacancies without any vetting by the people’s representatives.
Mind you, a president is the only government official constitutionally required to swear that he will “preserve, protect and defend” that Constitution. We are talking here not just about Obama’s characteristically breathtaking arrogance. These are profound violations of his oath and of our fundamental law. But rest assured he will get away with them. For that, Republicans can thank themselves and their surrender to statism.
Obama is hot to move forward on two fronts. The first is the Consumer Financial Protection Bureau. The CFPB is the monstrous Dodd-Frank’s crown jewel. Congress unconstitutionally delegated to it virtually unreviewable power to “dictate credit allocation in the U.S. economy,” as C. Boyden Gray put it. Not just bank lending — the law invests dictatorial power in a single CFPB director over thousands of American businesses. The CFPB is not just part of Obama’s design to splay the government’s tentacles throughout the private economy; it is also key to his reelection narrative: Leviathan, no longer shyly creeping but heroically swashbuckling through predatory capitalists to rescue the noble “99 percent.”
By law, however, the CFPB cannot operate until its director has been confirmed. Before the midterms, Senate Republicans lacked the votes necessary to stop the CFPB from being enacted, but they now have the numbers needed to block confirmations — or, in this instance, to extract concessions in exchange for confirmations. In our constitutional republic, this is what is known as politics. That is not a dirty word. Indeed, it is the very horse-trading that leftists and their media cheerleaders indignantly demand to be afforded even when they don’t have the numbers to force their opposition’s hand.
#page#So Republicans have declined to confirm Obama’s nominee, Richard Cordray (Ohio’s former attorney general, beloved of the trial lawyers). But being Republicans, they are not, of course, demanding repeal of this despotic CFPB coup — just as they have no real desire to slash any of the bulging administrative behemoth. Yes, they talk about slashing it, but what they actually want is to control it. So their bold pitch is to make the CFPB marginally more accountable and, as night follows day, bigger: to subject it to Congress’s appropriations process (as if that will give the public a real say in how it operates); to have bank regulators check its likely excesses (playing into Obama’s narrative about protecting Wall Street at the expense of Main Street); and to expand its leadership to several board members rather than a single unelected technocrat (because creating more patronage slots has been so effective in reining in the EPA and the rest of the bureaucratic maze).
#ad#Because the GOP establishment is statist lite, they play into the president’s hands. Removing the Dodd-Frank deadweight from a crippled economy, killing an authoritarian bureaucracy in the cradle — that is the kind of campaign that would have stoked passion, highlighting a very different vision of a country breaking free of its regulatory chains. But no one is going to get whipped up over a few technical tweaks on the one-way road to bigger Big Government. Obama has a simple story to tell: “Obstructionist Republicans are trying to stop me from saving you.” By comparison, the Republican story — “We’re all for statist cures, just with a Washington-style nip here and tuck there” — makes your eyes glaze over.
The president thus saw his opening to ride roughshod over the Constitution’s requirements that the Senate give its assent before top appointees wield power, and that this approval can be dispensed with only when the Senate is in a recess. Far from shaping the battlefield for a fight over first principles, Republicans have fallen all over themselves to praise Cordray’s qualifications. They’ve made certain everyone knows they have no problem with the concept of a CFPB. Congress, moreover, has been in a de facto adjournment for weeks. To be sure, the gimmick by which the session has been kept technically alive — a senator opening the record for a few seconds every couple of days but not doing any real business — is not only constitutionally viable (indeed, Obama’s own Justice Department endorsed it before the Supreme Court a year ago). The ruse was actually designed by Democrats and endorsed by then-senator Barack Obama for the specific purpose of barring recess appointments — by a Republican president.
Our community-organizer-in-chief understands the uses of lawlessness (known in the biz as “direct action”). Republicans have implicitly endorsed his CFPB and his nominee. With that, and with the media spinning the story his way, Obama is not a law-breaker but the courageous crusader for the little guy; Republicans are not liberty’s vanguard but the petty obstructers of progress.
The president’s second front is, as ever, Big Labor. He also used his supposed recess power to appoint three members to the National Labor Relations Board. This will ensure that the NLRB will not lack for the necessary quorum to do the bidding of union bosses who, in turn, keep the campaign cash and direct-action services churning for the Democratic party. Obama was even more audacious on the NLRB appointees than on Cordray: He submitted two of the three names to the Senate on December 15, right on the eve of the recess that wasn’t a recess. There is not even a fig leaf of GOP obstructionism to complain about — the Senate was given no realistic opportunity to do background checks or hold committee hearings, much less hold an informed confirmation vote.
Again, however, Republicans have not even attempted to sound the alarm for folding up the NLRB, even after its unelected bureaucrats outrageously presumed to begin telling private businesses, like Boeing, where they would and would not be permitted to operate. The GOP is not making the overarching case for getting Americans out from under the statist thumb; they are saying they would apply the same thumb more benignly — by slow-walking enough confirmations, they figure the 2012 election will mean vacancies filled by Republican-preferred bureaucrats.
#page#That is to say, the GOP has already surrendered on the greater constitutional transgression: the transfer of power from the people to the administrative state. To take another example, remember the Independent Payment Advisory Board? Like CFPB birthed by Dodd-Frank, the IPAB is an unaccountable, authoritarian panel created by Obamacare. It will ration health care through price controls. As Stanley Kurtz recounted in National Review, when the democracy-dissing Orszag was still working for Obama, he crowed that the IPAB is “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.” That is supposed to cheer us, since Congress has lower ratings than Keith Olbermann. But Orszag was wrong: Congress is not the sovereign; you are. It’s your control over your life that your representatives are yielding to cadres of “expert” technocrats at the IPAB, the CFPB, the NLRB, and the rest of the faceless bureaucracy that bends inevitably to the statists who create and sustain them — a bureaucracy that coerces our besieged private sector to shift trillions of dollars from the production of value to compliance costs.
#ad#Republicans have accommodated themselves to that gross distortion of constitutional governance. Realizing this, President Obama calculates that the GOP will have little difficulty swallowing this latest, lesser indignity: He no longer deigns to consult them on the staffing of a sprawling, suffocating bureaucracy over whose control they’ve already abdicated. He has taken their measure. He knows that, after a few days of huffing, puffing, and reading the editorial pages, they’ll shrug their shoulders and move on — mumbling some drivel about how they only control one-half of one-third of the government (that would be the one-half of one-third without whose approval the beast could not be funded).
GOP frontrunner Mitt Romney’s biggest applause line is his promise to reverse Obamacare by executive proclamation: He’d unilaterally issue “waivers,” purportedly relieving states from compliance with congressional statutes — just as Obama has assumed the power to decide which businesses have to comply. That this is implausible — that it does nothing to repeal the law or stem the legally mandated flow of funds to Obamacare’s gigantic bureaucratic infrastructure — is a point for another day. For now, the point is that Congress is increasingly irrelevant; the Constitution for a self-determining people is increasingly irrelevant. Neither party seems to have much of a problem with that. All that matters is who gets to wield executive power and staff the administrative state. We’re becoming Tom Friedman’s fantasy — and we’re apt to find it suboptimal.