In the grand scheme of constitutional jurisprudence, it was a meager thing. President Obama, who has relentlessly expanded the federal government writ in lock step with his own Chief Executive powers, was dealt a setback today (January 25, 2013). The US Court of Appeals for the District of Columbia issued a judgment rendering his appointment of three National Labor Relations Board members during congressional recess (thereby strategically not requiring Senate approval) a nullity, saying that the appointments violated the Constitution’s separation of powers doctrine (though not specifically–they simply said that Congress was actually in session when the appointments were made). Read more about the case here.
The requirement that high level executive appointments (to cabinet positions, the federal judiciary, the NLRB, etc.) be vetted and approved by the Senate has been a thorn in the side of imperial executive prerogatives since the republic’s founding. Which is to say, it has worked precisely as the founders intended. The drafters of the Constitution were suspicious of concentrated governmental power, skeptically believing that men had less than angelic souls, not trusting they would act in opposition to their selfish interest in the service of the common weal, so provided for a balance power amongst the three branches of government–the executive, legislative and judicial. The power of any one branch would be limited by the necessity to do battle with any of the other two. The framers of the Constitution hoped that continual low-intensity conflict among the three branches would provide some protection to the polis from the Leviathan of government growing too powerful and thereby, potentially oppressive. Or at least, that was the plan.
The executive branch, headed by one individual, more or less popularly-elected and thereby not subject to the necessity of political horse-trading inherent to the deliberative branches, a necessity rendering them incapable, for the most part, of speaking with a singular voice, has been gradually accreting power since at least Abraham Lincoln, who went so far as to suspend the Writ of Habeas Corpus (habeas corpus is Latin for “you have the body”) during the Civil War. The Writ was one of the only aspects of criminal law procedure the founders specifically provisioned in the Constitution. It basically provides that any time an arrest is made, the accused, upon petition for the Writ, must be presented to an officer of the court such that the arrest and detention can be vetted by a judge. It should come of no surprise that the Writ, called by Sir William Blackstone the “great writ of liberty” has been effectively abandoned since 9-11 regarding any and every supposed terrorist. But Obama has learned a way around the Writ in regards to the War against Terror that seems to make his predations of constitutional powers palatable. Instead of detaining suspected terrorists, even those who are US citizens to whom the Writ should apply, he simply orders their assassination. Perhaps he has taken too literally the Latin from which the name of the Writ is devised. He actually produces the body, only not to the courts to ensure the process of arrest and detainment is legally justifiable, as dead men are not endowed with inalienable rights.
Obama, ironically a constitutional law professor in a previous life, has shown little regard for the Separation of Powers doctrine. When Congress failed to pass an immigration reform law, he simply ordered the Executive branch to quit enforcing the law as it now exists, effectively issuing at one fell swoop a pardon, asylum and path to citizenship to those whom he, in his magnanimous wisdom, determined should be exempted from the ordinary operation of the law. That the recipients of his beneficence were undoubtedly deserving provides no absolution; his actions still represent an encroachment upon legislative branch imperatives. As Chief Executive, he is charged with enforcing the law, as passed by Congress. Unilaterally deciding to not enforce a duly passed law is a huge usurpation of legislative power and prerogative. But there has been nary a peep, from either the Congress or the judiciary, on the matter.
And Obama’s foray into legislating from the Oval Office regarding immigration law and policy is hardly the only, or even the most egregious, of his executive office predations on the other branches. Congress never authorized, not even in the dubiously named Patriot Act, the assassination of US citizens by Executive Order. It authorized a lot of extra-constitutional activity, but it didn’t go as far as to allow a President the discretion to serve as judge, jury and executioner of American citizens. But Congress is uniquely positioned politically to silently acquiesce in the assassinations. Since 2010, the House of Representatives has been majority Republican, and Republicans never saw a dead infidel (of the other stripe) whose end did not justify the means. The only people in the Congress who might object to Obama’s assassination regime are Democrats, and well, Obama is their man. They refuse to question him on anything.
That the federal judiciary has also mainly refused to question any of Obama’s actions in prosecuting the War on Terror is nothing less than cowardice camouflaged as wise jurisprudence. Indeed it is true that the Constitution is not a suicide pact, but it also true that throwing out the Constitution in order to allow an American president to assassinate his own citizens is constitutional suicide. What sort of constitutional republic remains when the Constitution is parenthetically ignored because some few American citizens perhaps (as there is no way to really know, because only Obama and his intelligence operatives are privy to the information that defines the threat) exhibit some anti-American sentiments?
So it comes as a bit of a surprise that a federal court has actually acted to limit Obama’s reach. Like courts often do, it ruled narrowly, and in a mainly esoteric case that has little resonance outside the specific area of its application. But the ruling at least stands for the idea that indeed, there are some Constitutional limits to Executive Office prerogatives. Like Olaf, glad and big, proclaimed in e e cummings’ poem (I sing of Olaf, glad and big) the DC Court of Appeals basically said “there is some shit I will not eat”, or perhaps, “I will not kiss your fucking flag”. Take your pick, the Court basically told Obama to back off his constitutional predations.
The only real limit to presidential imperialism is the ballot box, and Obama just won at the polls again. But that means his time at the helm is rapidly ticking away, unless he can manage, like a Chavista del Norte, to find a way around the Constitution. Sadly enough, he’s succeeded, except in this particular instance and a limited few others, to have mainly done just that throughout his reign. If Obama manages somehow to extend his reign beyond 2016, he will have effectively sounded the death knell for the republic. I won’t be surprised to see him try to do so. Neither will it surprise me if he succeeds.