|And Now, Miguel|
By Quin Hillyer
Wednesday, April 18 2012
Democrats may rue the day, now nine years ago, they violated the Constitution’s spirit by filibustering to kill the nomination of brilliant attorney Miguel Estrada for a federal appeals judgeship. Senate Republicans now have retained Estrada to plead their case against several “recess” appointments made by President Barack Obama – appointments made when the Senate was not actually in recess, and against the prior arguments of its own lawyers.
This case is just one battle in a war against Obama’s repeated imperial abuses of authority.
Estrada technically will be filing a friend-of-the-court brief in the case of Noel Canning v. NLRB, in which a family-owned, Washington State soft-drink bottler and distributor is suing to block a National Labor Relations Board edict that it agree to collective bargaining with a union. At some point, it would be odd if a court does not allow Estrada to add his oral arguments, representing Senate Republicans, to the court proceedings in support of Noel Canning.
The company asserts that the NLRB acted through the agency of three board members improperly appointed in January, and therefore ineligible to exercise power. Obama appointed the three, along with Richard Cordray as the head of the Consumer Financial Protection Bureau, even though the Senate never requested, and the House never granted, permission to adjourn at all during the Christmas season.
Legal precedent had established a ten-day “recess” as the minimum time the Senate must be out before the president can make a key appointment without the usually required Senate confirmation. Obama lawyers themselves had argued that at least a three-day recess is required. But the Senate never even took a three-day recess, instead holding “pro forma” sessions every three days, just as Senate Democrats had insisted on when they were in the minority, partly in order to block a president from taking just such a precipitous action.
Obama flacks argued that the sessions were a “sham” because no business was being conducted – but that ignores the rather obvious fact that the Senate passed the president’s own request for extension of the payroll tax cut during one of those supposedly “sham” sessions.
As an acclaimed advocate who has argued 20 cases before the U.S. Supreme Court, Estrada is likely to pick apart the administration’s bogus case with great success.
If only this were the only rank violation of the proper limits of presidential power. Alas, it is just one of Obama’s many such violations. Let us count some of the ways:
Interference in educational curriculum: As George Will noted, citing a thorough study by former Department of Education lawyers Kent Talbert and Bob Eitel, federal law prohibits the national government from interfering in local or state curricula. The administration, however, has misused the “waiver” process in the No Child Left Behind law to force its own curriculum choices on the states.
Implementation of union “card check” rules: Despite repeated congressional refusal to change the rules governing union-formation elections at individual companies, the administration’s NLRB is proceeding to require union-friendly “card check” rules by executive fiat.
Carbon emissions requirements: Again, Congress refused to add tighter restrictions on carbon emissions – so Obama’s Environmental Protection Agency, willfully using bad science as a basis, imposed new rules anyway, again by decree.
Unilateral negation of ownership rights of secured creditors: During the auto bailouts, themselves of dubious legality, the administration trampled the ownership stakes of secured creditors – by law, first in line to have ownership rights protected – and confiscated up to 30% of their shares, giving them to unions instead.
Negation, and attempted negation, of religious liberty: The administration’s edict forcing faith-based employers to provide insurance that includes free provision of abortifacients (and other contraception) likely will not stand, but it is an egregious attempt to strangle religious liberty in its very crib. But it’s not the only attempt. Thank goodness, a unanimous Supreme Court already smacked down the administration in a prior attempt, namely its full-scale assault on the “ministerial exception” that allows religious employers to use faith-based criteria in its hiring and firing practices.
Violation of warmaking authority: In his use of force in Libya, Obama refused not only to ask for congressional authorization (as per the War Powers Act), but also to report “hostilities” to Congress. Instead, it abused our mother tongue, the English language, to describe our armed force as “kinetic military action,” whatever that is, in order to claim complete exemption from ordinary congressional oversight.
Repeated abuses of the independence of inspectors general: AmeriCorps IG Gerald Walpin is only one of several IGs over whom Obama has run roughshod. (Google all the Washington Times editorial coverage of the case: Mr. Walpin never did receive justice.)
The litany of abuses is even longer, but that’s enough for now. This president shows dangerous authoritarian tendencies which ought to be arrested.
Related Articles :