The president’s decision to exchange five high-ranking Taliban leaders for Army Sgt. Bowe Bergdahl in May violated a federal law that required him to notify Congress 30 days in advance of releasing detainees at Guantanamo Bay, Cuba.
The Dream Act, a legislative proposal first introduced in Congress in 2001, would provide conditional permanent residence to certain illegal immigrants who graduated from U.S. high schools and arrived in the country as minors. Congress never passed this legislation. Yet, in June 2012, President Obama declared that, even though it was not the law, he would implement it.
In June, the U.S. Supreme Court invalidated President Obama’s use of recess appointments. In January 2012, the president appointed senior officials to the Consumer Financial Protection Bureau and the National Labor Relations Board, taking advantage of a period when the Senate was not actively in session. Legal experts regarded the move as risky, given that historically, recess appointments have been made when the Senate is formally out of session for an expanded period.
“This White House chose to take on that battle and has now received some diminution in the power Obama can pass on to his successors,” said John Clooney, a former assistant to the solicitor general and deputy general counsel at the Office of Management and Budget. “That’s an object lesson for the White House who risked triggering the separation of powers question.”
The Court said the president has the authority to make appointments only to vacancies that arise during a recess, which would significantly limit a president’s ability to use the recess appointment power.
Justice Antonin Scalia noted that, as the current case showed, presidents have become enamored of the recess appointments because this relieves them of the more difficult task of persuading the Senate to give its “advice and consent” as is constitutionally required. The recess power is an “anachronism,” he wrote, from a time when the Senate was away for long periods of time and could not be easily convened for business.
Scalia wrote: “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumscribe the Senate’s role in the appointment process.”
Sen. Ron Johnson (R-WI) calls for a national discussion of “the erosion of legislative authority within the evolving model of the federal government. There has been a dramatic shift of authority toward presidential powers and the emergence of what is essentially a fourth branch of government, a vast network of federal agencies with expanded legislative and judicial power.”
The power of the president seems to grow, regardless of which party is in power. Richard Nixon, we remember, was accused of putting a handful of reporters under government surveillance. The Obama administration seems to have gone further, admitting to putting Associated Press reporters and a Fox News reporter under surveillance.
There has, under the Obama administration, been repeated obstruction of Congress. It has refused to provide evidence sought by oversight committees in a variety of scandals, such as those relating to Benghazi and the IRS. In one case, Congress voted to move forward with criminal contempt charges against Attorney General Eric Holder, which Holder’s own Justice Department blocked.
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