This isn’t easy to write.

Over the last week, the Obama Administration successfully disregarded the Constitution. Again.

Before, on most issues, Democrats could argue that it was all a philosophical disagreement. A different interpretation of the wording, or basing a case off of an admittedly shaky (but ultimately sound) precedent.

But there is no question now that the Obama Administration is knowingly working against the Constitution.

Obama has appointed his nominees to the Consumer Finance Protection Bureau and the National Labour Relations Board without Senate confirmation. The Senate is legally in session, yet they were not consulted.

The Executive branch does not have the power to unilaterally appoint bureaucrats to positions of power without the approval of the Senate. Exceptions are made when the Senate is not in session; so as not to leave a major opening empty for several months, but even those appointments (known as “recess appointments”) are fraught with political hazards.

While the President says this is no different, and that “…when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them.”[1], he is seizing a power that was never his. The Separation of Powers is clear. The Legislative branch confirms the appointees proposed by the Executive Branch.

The Senate debates with the nominees, questions them, and examines their records before giving them control over the mighty machinery of government. The most chilling thing is not Obama’s casual sidestepping of the law, but the fact that there is very little that can be done to stop him from doing so. No Republicans seem to have the courage to stand up and denounce this affront to the Constitution. Scott Brown even came out in favor of it.

This isn’t the first time that the Republicans have allowed the Administration to act outside of their Constitutional purview.

Let’s look back at some of the other Constitutional missteps and legal misgivings of this Administration.

We have Elena Kagan’s refusal to recuse herself from the Obamacare vote, despite Administration memos that place Justice Kagan and her office at the forefront of preparing the official legal defense. (Read about it here.)

While not unconstitutional, it is most certainly against the Judicial Code of Conduct, specifically Canon 3C(1)(b) and Canon 3C(1)(e).

Canon 3C(1)(b) states that:

(1)A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(b)the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;

As Kagan served with the current Solicitor General, Donald Verrilli, Jr., who (I assume) will be doing his job as Solicitor General and trying the most important case of the Obama Presidency, she most certainly meets this criteria.

Canon 3C(1)(e) states that:

(1)A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(e)the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.

As Solicitor General, Kagan was involved in the Obamacare  discussion. This is fairly open and shut, if there was oversight.  But without a united Republican party, ready to fight for impeachment/perjury charges, there is very little we can do but hope that the optics will be SO bad that they have no choice but to do the right thing.

When it comes to the actual unconstitutional part, we have (most notably) Libya.

The President never sought a resolution from Congress to go into Libya, yet the U.S. went.  Well, they went to take part in a ‘kinetic military action,’ which is never mentioned in the Constitution, so it’s fine.  Yep.  No problems here.  None. [2] Except for the required Congressional approval found in Article 1, Section 8.

Then there’s Obamacare itself, and the controversial individual mandate, where Congress’ responsibility to ensure that interstate commerce flows well (also found in Article 1, Section 8), is twisted to infer that Congress has the right to make free citizens purchase a product.

It isn’t complicated. It isn’t even a deep issue that requires a boatloads of research on the intent of the Framers of the Constitution.

If you believe that the Constitution, as originally intended, should be the law of the land, it is clear: this Administration is operating against the Constitution.

Luke Stibbs :: University of the Fraser Valley (BC) :: Abbotsford, British Columbia, Canada :: @LukeStibbs