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JOHANNS: Obama’s recess appointments expand his powers

But a president is not above the law

- - Tuesday, February 5, 2013

On Jan. 20, Barack Obama took the presidential Oath of Office, swearing once again to uphold and defend the Constitution. Just five days later, the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that his appointing members to the National Labor Relations Board (NLRB) defied the checks and balances enshrined in the very document he promised to protect. The court ruled that the president ignored his constitutional obligation to seek the Senate's advice and consent by filling these posts when the Senate was in session.

Later that day, the administration doubled down on its strategy to ignore constitutional limits on the executive branch by turning a blind eye to the court's ruling. The NLRB essentially told the court to go pound sand, saying it would continue conducting business as usual in spite of the unanimous ruling of three federal judges that the board operated without authority. Clearly, the Obama administration plans to roll the dice in hopes the Supreme Court will hear its appeal and overturn the decision. In the meantime, the board has no plans to slow down, even after it admitted that "similar questions have been raised in more than a dozen cases."

The White House's attempted expansion of presidential powers didn't stop with the NLRB. Mr. Obama also appointed Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) at the same time, under the same circumstances. Therefore, his appointment would be similarly unconstitutional.

As elected officials, we have an obligation to honor the oath we took to uphold the Constitution and respect the limitations placed on our respective branches of government. Checks and balances are in place for a reason, and when one branch of government oversteps its authority, it is up to the others to re-establish balance.

For my part in the Senate, I introduced legislation preventing federal dollars from being spent to implement any NLRB decision or regulation made without a Senate-confirmed quorum. The legislation will also block the CFPB's next transfer of Federal Reserve funds used to carry out any actions that require the approval of a director.

Hundreds of decisions have been handed down during this breach of authority, and many more are likely if Congress doesn't act to prevent these agencies from continuing to disregard the court ruling.

I also asked the Government Accountability Office to investigate the actions taken by both the NLRB and the CFPB following the unconstitutional recess appointments to determine their scope and economic impact. These decisions may have had damaging ramifications on our already constricted economy, and it is important to nullify them if they were unconstitutionally made.

The next step for the NLRB and CFPB should not be to continue snubbing the Constitution, Congress and the courts. Instead, the appointees should give up the charade of their authority and step aside. The Constitution and the court's ruling are very clear on the important advice and consent duty of the Senate, and it should be heeded before the NLRB and the CFPB engage in further action.

The president -- a former constitutional law professor -- and his legal counsel, who have stood by the so-called recess appointments, need to take a very serious look at the Constitution and review the authorities and limitations granted to each co-equal branch of the federal government. According to the court's ruling, this flagrant attempt to disregard the constitutional limitations of executive authority is not only a practice that "would eviscerate the Constitution's separation of powers," but it also has lasting impacts on people across the country. I believe these unconstitutional appointments were meant to push the limits of the law. I hope they were not a more troubling attempt to elevate the executive branch above it.

Nobody is above the law -- not even the president. The Senate's power of advice and consent was not a mere suggestion by the Framers of our Constitution. The court reiterated this point, saying, "We will not do violence to the Constitution by ignoring the Framers' choice of words." The Senate and courts should not need to engage in a game of Whack-A-Mole with the president, swatting down illegitimate appointees who pop up every time the Senate breaks for lunch or shuts off the lights for the evening. The court's ruling clearly reiterates this constitutional reality, and I am working with my colleagues to restore a balanced government.

Sen. Mike Johanns is a Nebraska Republican.