Congressional Republicans and conservative pundits are justifiably outraged by President Barack Obama’s recent moves to circumvent Congress’s powers. Specifically, concerns have been raised over the president naming Richard Cordray to head the newly created Consumer Financial Protection Bureau through a recess appointment and over Obama’s use of so-called “signing statements” to circumvent congressional legislation.
The recess appointment of Cordray clearly is troubling, since it flies in the face of the constitutional requirement that such appointments are permitted only when Congress is in recess — which in this instance it was not.
However, Obama’s use of signing statements to signal to Congress his intent not to comply with certain provisions in legislation he signs into law is based on numerous precedents made by his predecessor, George W. Bush — actions to which few Republican members of Congress objected.
Both of Obama’s actions — as well as Bush’s — illustrate a troubling trend toward increased power in the executive branch and necessarily diminished power in the legislative branch. The fact that this and previous Congresses have shown a distaste for challenging such presidential power grabs indicates the degree to which our three-branched structure of government is out of whack.
The Founding Fathers crafted a carefully balanced government structure. Each of its three branches was designed to exercise certain enumerated and defined powers, and each was not to be permitted to usurp the powers of the other branches. The goal of all this — as described eloquently by James Madison in Federalist No. 51 — was to enable the people to control the government.
Although the Framers did not anticipate the power that would come to be exercised by the federal judiciary — something that manifested itself as early as 1803 with Chief Justice John Marshall’s famous decision in Marbury v. Madison — they did anticipate power grabs by the executive branch, having witnessed first-hand the near-absolute and often arbitrary power exercised by King George III. Therefore, they made sure to incorporate a clear division of powers into the Constitution. And so the president nominates, but the Senate confirms. Congress passes legislation, but that legislation does not become law until the president signs the bills both houses of Congress have passed. If a president disagrees with such measures — believing them, for example, to be contrary to his powers — he is given three options: he can veto them, challenge them in court or ask Congress in separate legislation to modify them. But the president doesn’t have the option of signing a piece of legislation into law and then issuing a statement that he will not be bound by the law he is signing.
The veto power in Article I of the Constitution is quite clear. It is a power that cannot be used selectively by carving out certain provisions for veto and leaving others intact; a bill is to be vetoed or signed in its entirety (a principle the Supreme Court reaffirmed in a decision it issued during the Clinton administration). However, George W. Bush — who had a more expansive view of executive-branch power than any of his predecessors — repeatedly asserted to the contrary that he could sign a bill and at the very same time brazenly assert he could and would ignore any provisions his administration deemed to improperly limit his prerogatives.
The failure of both Republican- and Democrat-controlled Congresses to challenge Bush’s signing statements has made it easier for his successor to not only exercise those so-called powers reserved to the president in contravention of the law, but to expand the universe of such extra-legal powers. It has also made it more difficult for Republicans to cry “foul” with any degree of credibility or sympathy when President Obama thumbs his nose at them in other ways, such as by making improper recess appointments.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.