Barack Obama’s first term was a kind of warm-up for the Main Event: i.e., his second term. During his first term he sometimes ignored Constitutionally-mandated rules and separation of powers to accomplish things that he knew the Congress would never countenance.
One of his boldest acts – little-noticed in the media, and barely mentioned in the Congress – was his appointment of a director to the Consumer Financial Bureau and three members of the National Labor Relations Board without submitting them as candidates for confirmation by the U. S. Senate. Mr. Obama called them “recess-appointments” – referring to a provision in the Constitution for filling an office when the Senate is not in session. In this case, however, the Senate was technically still in “pro-forma” session. But Mr. Obama declared that the Senate was recessed, and made his appointments anyway.
This peculiar action grew out of another Constitutional provision which specifies that neither house of the Congress may adjourn for more than three days without the permission of the other house. The rule was placed in Section 5 of Article I to prevent either house from unilaterally stopping the country’s business for partisan political purposes. It also prevented the president from making recess appointments that one house or the other did not desire.
The rule has not often been used, but it was invoked during the presidency of George W. Bush. Democrats, who controlled both houses of Congress, wished to keep Mr. Bush from making recess-appointments. Thus, the Senate remained in pro-forma session with only a handful of members present to conduct business. Although advisors urged Mr. Bush to treat the Senate as “adjourned,” he deferred to the Constitution’s wording and declined to act.
In Mr. Obama’s term the Republican-controlled House of Representatives also wanted to prevent any recess appointments, so they did not agree to the Senate’s adjournment at the end of 2011 and the start of 2012. According to the Constitution, this meant the Senate was still in pro-forma session. But Mr. Obama announced that the Senate was adjourned, since Majority Leader Harry Reid had so declared, and he proceeded with his recess-appointments. Mr. Obama thus assumed an extra-Constitutional role of adjudicating a difference between the two houses of Congress – a role reserved exclusively for the Supreme Court.
In one of his cases, Sherlock Holmes mentioned the “curious incident of the dog in the night,” to which someone replied that the dog did nothing in the night. “That was the curious incident,” said Holmes.
So it was in this case, with the “dog” being the Congress. The Senate was Democrat-controlled, so they could be expected to roll over for Mr. Obama’s move. But the Republican Speaker of the House did nothing except give a small bark about the “illegal” appointments. The obvious recourse of an appeal to the Supreme Court was not employed. Mr. Obama skated clear, and the matter went down the media “memory hole.” I’m not aware that Mitt Romney even mentioned it during his campaign for the presidency.
House Minority Leader (and former Speaker) Nancy Pelosi (D-CA) announced that she was “proud of” Mr. Obama for taking this decisive action. Had Mr. Bush done this, Mrs. Pelosi and her fellow-Dems might have taken it to the Supreme Court or even impeached Mr. Bush.
Later, during his 2012 re-election campaign, Mr. Obama declared that children brought to the USA by illegal immigrants would be given a path to citizenship if they were in college or military service, or could otherwise show that they were in lawful standing. In the interest of journalistic honesty (is that an oxymoron?) I’ll admit that I consider this a good idea. But the difficulty is that the president has no authority to take such an action. The Constitution expressly grants the Congress unique power over citizenship-rules (Section 8, Paragraph 4).
If the American people want the status of illegal immigrants’ children to be normalized, the Congress would have to enact legislation to that effect. The President cannot legally do it by himself. But no significant protest was raised over Mr. Obama’s usurpation of this power. He successfully skated round the Constitution again, and no one laid a glove on him.
Speaker Pelosi might have been “proud of” President Obama for going around the Constitution in these ways, but she shouldn’t have been. For Mr. Obama’s actions automatically became a model for future presidents, who might not be politically aligned with Mrs. Pelosi’s views. A day might come when she will regret her support for such un-Constitutional behavior, but by then it will be too late.
Mr. Obama’s model of end-running around the Constitution means that every new president will now come to office with an implicit mandate to ignore or change any laws he doesn’t like, and to treat the Constitution similarly. He will feel free to exercise new powers found nowhere in that document. Every citizen should find this alarming. Such actions are dangerous, no matter which president is doing them.
An acquaintance of mine has pointed out that the current public attitude, which excuses presidents – especially popular presidents – from obeying laws the rest of us must follow, goes back at least to Bill Clinton. A Republican House of Representatives impeached His Bubba-ship on two articles that would have landed any ordinary citizen in the pokey: one article charging him with obstruction of justice (i.e., jury-tampering); the other article charging that he perjured himself before a grand jury. In both instances, Mr. Clinton had been a defendant in civil proceedings. The two-charge indictment went to the Senate for trial on January 7, 1999.
There was no real dispute over the veracity of the articles sent to the Senate. But some senators argued that they did not rise to the level of “high crimes and misdemeanors,” which the Constitution cites as grounds for impeachment. This left many citizens wondering what a president’s actions might have to be to reach that level. (Perhaps filching the Senate’s coffee supplies?)
Other senators clearly believed that removing the president from office would damage the country and constitute a cure worse than the disease. On that point Henry Hyde made this telling assessment in his summation for the prosecution:
“A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious…We have reduced lying under oath to a breach of etiquette, but only if you are the President…”
Ultimately, most Senate-votes on the two articles followed party lines. No Democrat senator voted to convict on either article. The perjury charge failed, with 45 Republican senators voting “guilty” and 55 senators (45 Democrats and 10 Republicans) voting “not guilty.” The obstruction of justice charge also failed, with 50 Republican senators voting “guilty” and 50 senators (45 Democrats and five Republicans) voting “not guilty.” (A two-thirds guilty vote on any impeachment article is required to remove the president from office.)
Q: What does all this tell us?
A: That a president is virtually invulnerable, because of political dynamics, even if he is brought up on serious charges that would sink an ordinary citizen.
In other words, the president is not an ordinary citizen. Barack Obama was untouchable, no matter what he did in office. He was beyond the reach of voters, except in an election, and there was no conceivable situation in which he could have been called to account for his actions. The protection furnished by his political allies in the Senate and his fellow-travelers in the media would have prevented it.
The Clinton impeachment and subsequent Senate-trial differed from the two impeachments of President Trump. Both of those proceedings were political shows designed to damage Mr. Trump, politically. The 2019 Impeachment produced an article charging that Mr. Trump abused power by demanding that the Government of Ukraine announce investigations that would “benefit Mr. Trump’s reelection, harm the election prospects of an opponent, and influence the 2020 election to his advantage.”
A second article charged that Mr. Trump obstructed Congress by directing Executive Branch agencies, offices, and officials not to comply with subpoenas issued by the House of Representatives in the course of their impeachment investigations. There was not the slightest chance of Mr. Trump’s conviction by the Senate on either article, but Democrats’ goal of harming Mr. Trump politically was clearly achieved.
In 2021, after demonstrators’ January 6th invasion of the Capitol, the House of the new 117th Congress impeached President Trump for treasonously fomenting “an insurrection” against the United States. That charge also failed to gain support in the Senate.
Of course, being able to survive a Senate trial for articles of impeachment doesn’t mean the president has skirted the Constitution. That is an entirely legitimate outcome of such proceedings. But a president’s probable ability to survive impeachment does mean that he will be free to take almost any course of action without fear of being held accountable.
Mr. Biden’s advisors have undoubtedly studied both the Clinton and Trump impeachments very carefully. Unless I am greatly mistaken, they have concluded that Mr. Biden can proceed in any direction he wishes to go, without fear of restraint or prosecution. There is no telling how far he might go to “fundamentally transform” the country – Mr. Obama’s original goal, which has not changed, so far as I know.
Right now, hundreds of thousands of illegal immigrants are pouring across our southern borders because Mr. Biden has ordered non-enforcement of our immigration laws. He has also undone USA energy-independence by shutting down the Keystone Pipeline and stopping oil-drilling on federal lands. I doubt if “nationalizing” private retirement assets and entire segments of the economy would be beyond him.
In 2009 Mr. Obama stiffed GM bond-holders to the tune of $27 billion by intervening in what should have been a normal bankruptcy proceeding. Yet not a voice (or lawsuit) was raised. A cabinet-level economist of my acquaintance said he and his colleagues had no idea how Obama could do that. The Big O was unstoppable. Mr. Biden knows he has the same green light.
Readers who feel secure in their own social and financial bubbles might think this sounds unrealistically dire and alarmist. But all Americans need to recognize the warning signs that others have recognized in the past. One of those was the great German pastor and patriot, Martin Niemoeller, who made this prescient statement during the era of Nazi ascendancy:
First they came for the socialists, and I didn’t speak out because I was not a socialist.
Then they came for the trade unionists, and I didn’t speak out because I was not a trade unionist.
Then they came for the Jews, and I didn’t speak out because I was not a Jew.
Then they came for me, and there was no one left to speak for me…
Dr. Niemoeller wrote those lines during evolving Nazi oppression. The historical record tells how bad things eventually got. Our situation is different, of course, but the warnings still apply to citizens who think they will somehow be exempted from the actions of an out-of-control president and his government.
We put this man in the White House. Now we’re going to see what he is really capable of. “Fundamental change” will touch everyone unless we stand together to oppose it. This evokes Ronald Reagan’s famous questions:
“If not us, who? If not now, when?“