- The Washington Times - Tuesday, February 14, 2012

On Jan. 4, stargazers all over the world were dazzled by the very first meteor shower of 2012. The West Virginia Mountaineers beat the Clemson Tigers in the Orange Bowl. Politicos were busy spinning the results of the Iowa Caucus. The payroll-tax saga was still fresh in our minds, and the camera lights were dark on Capitol Hill. Meanwhile in Cleveland, President Obama was back on the campaign trail, touting his four “recess” appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. This may have been a great sound bite for the president, but his appointments violated the Constitution. The appointments were neither made while the Senate was in recess nor confirmed by the upper chamber. Instead, the administration trampled on the Constitution and went its own way.

As we all learned in high school civics, the executive branch gets its power from Article II of the Constitution. Included in this section is the president’s authority to appoint certain unelected public officials with the advice and consent of the United States Senate. The Founders included this provision in the Constitution because they envisioned cooperation between the executive and the Senate. Cooperation between the executive and Congress? Sadly, there is no such thing under this administration. In the event that the Senate is in recess, the Constitution does permit the president to make temporary recess appointments. Inconveniently for the president, on Jan. 4, the Senate was not in recess long enough to allow for recess appointments. But this White House seems to live in a world far from reality where the executive can say when Congress is in session and when it is not. So much for separation of powers.

According to the administration, the Senate was in recess so the appointments were constitutional. If that were true, how could the controversial payroll-tax-cut extension - signed by the president on Dec. 23 - be signed into law? Congress cannot pass legislation unless it is in session. If the Senate was in recess as the administration says, this law would be null and void. The executive cannot have it both ways based on what is on the political agenda. According to the Constitution, if the House or Senate wants to recess, it must get consent from the other chamber. The House did not consent to a Senate recess nor did the Senate ask the House for its consent. The executive cannot use linguistic gimmicks to redefine the words “recess” and “session” to his own liking. It is Congress that decides when it is in session, just as the president decides when he is on recess in Hawaii.

Our Founding Fathers were determined to build a country where freedom was protected and government was limited. They designed the framework for the American government in the Constitution. This document has been the glue that has held our democracy together for more than 200 years. It ensures that power is separated between three branches of government and that no one person is immune from the rules. Not even the president of the United States.

The Constitution is not optional. This administration’s chronic disregard and disrespect for the law of the land is unprecedented and cannot be tolerated. Congress will explore all options to check this constitutionally questionable abuse of power by the executive branch. The House Judiciary Committee will discuss on Wednesday this executive power grab and will explore possible next steps by Congress. Mr. Obama is not the only one who swore to uphold and defend the Constitution of the United States. Congress has the constitutional obligation to check the actions of the executive branch. After all, that is what separation of powers is all about.

Rep. Ted Poe, Texas Republican, is a member of the House Judiciary Committee and was a judge in Houston for more than 20 years.

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