House Committee Examines Obama’s Unconstitutional Appointments

Alison Meyer / Rob Bluey / February 02, 2012

President Obama’s illegal non-recess appointments are unconstitutional and defy the process the Founding Fathers intended, Sen. Mike Lee (R-UT) told a House committee Wednesday.

The House Oversight and Government Reform Committee invited a handful of constitutional law experts to discuss the four controversial appointments Obama made in January. Citing delays in the Senate, Obama installed Richard Cordray (pictured) as director of the Consumer Financial Protection Bureau and Richard Griffin Jr., Sharon Block, and Terence F. Flynn as members of the National Labor Relations Board.

Lee, a constitutional expert and scholar, relentlessly defended the U.S. Constitution, saying Obama’s appointments defied checks and balances, taking away the power that belongs to the people.

“Constitutional government is designed to not be so efficient so laws don’t get passed quickly,” Lee argued. “Just because there are delays, the Constitution shouldn’t be circumvented.”

The central debate at the hearing was whether or not the constitutional process of checks and balances should be circumvented for efficiency. Defenders of Obama’s decision focused their arguments on delays, saying the process is not efficient.

“This institution of Congress and the House and the Senate is rightly seen by Americans as totally dysfunctional,” said Rep. Peter Welch (D-VT). “There is a fundamental difference between deliberation and destructive delay. … This institution isn’t working.”

Other witnesses included legal experts who debated the constitutionality of the appointments.

Michael Gerhardt, a constitutional law professor at the University of North Carolina, defended Obama’s decision. He said the appointments were the only “feasible means” to move forward.

“The fact that these appointments have been made increase the likelihood that the affected agencies will be able to fulfill their statutory objectives, whereas allowing the positions to remain unfilled leaves many Americans unsure about whether or when these statutory objectives may ever be realized,” Gerhardt said. “It seems perfectly appropriate for the president to take such concerns into account.”

But other witnesses said expediency shouldn’t be a reason for taking an unconstitutional action. C. Boyden Gray, who served as s White House counsel for President George H.W. Bush, urged Congress to take action in response to Obama’s decision. He warned against relying on the courts to do so.

“Because Congress cannot be sure that the courts will retroactively correct the CFPB’s and NLRB’s exercise of unconstitutional power even if they have been unconstitutionally staffed, it is all the more incumbent upon Congress to explore whatever checks and balances are available to pressure the Administration not to repeat its unconstitutional appointments, and to nominate a new CFPB Director and NLRB members who would secure the Senate’s advice and consent.”

Heritage’s Ed Meese and Todd Gaziano articulated a similar position in a Washington Post op-ed last month. But despite such concerns with Congress punting the question to the courts — including the long delay that would be required to get a final court ruling — at least two senators appear willing to move in that direction. Lee and his colleague Sen. Rand Paul (R-KY) said they will file amicus briefs in one case that has attempted to challenge the illegal appointments.