President Obama is feeling his wild oats pretty seriously these days. Besides the NDAA he signed giving sweeping powers to arrest terrorism suspects, more so that the Patriot Act, there is now the Recess Appointment Scandal.
Obama has appointed Richard Cordray to head the new Consumer Financial Protection Bureau, an agency created in such a way that it has essentially no oversight by Congress. He did this appointment as an "intra-session" appointment by declaring that in his judgement the Senate is not actually in session and therefore he can make appointments, and bypass Congress' advise and consent role. Cordray was recently rejected by the Senate for this position, not because he is not qualified, but because congressional Republicans said Mr. Obama was accruing too much power to himself through those two agencies. Never-the-less, there are very serious questions raised on the constitutionality here - read the articles carefully to get the full scenario.
Washington Times article: Obama-unprecedented-recess-appointment
Heritage Foundation has weighed in on the unconstitutionality of the appointment: Morning-bell-beneath-growth-a-sea-of-poison
Washington Post article by Ed Meese, former Attorney General under Ronald Reagan: Obamas-recess-appointments-are-unconstitutional
And, to add to the wounds, Obama used the same mechanism to appoint three new members to the NLRB, that wonderful union oriented board that recently told Boeing they could not open a new factory in South Carolina. Two of the three are Democrats, one a Republican, but all have NRLB experience or union ties, so could be said to be partisan to the union cause.
The scary part of all of this is that the Office of the President does not have this sort of power, and should not. If allowed to stand, one can presume that a president could just declare that a bill he wants passed is "deemed" passed if Congress is being slow to pass it. Or, he could do pretty much whatever else he wants...
As Meese says, "If Congress does not resist, the injury is not just to its branch but ultimately to the people. James Madison made clear that the separation of powers was not to protect government officials’ power for their sake but as a vital check on behalf of individual liberty. To prevent future tyrannical usurpations of power, Congress must act to redress this serious threat to our liberty."
Jan 13 Update: The DOJ's Office of Legal Counsel today released their justification document on why President Obama can make "recess" appointments. It is an embarrassing document, written to match a previous conclusion: Pro-forma-sessions-opinion
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