Peter Ferrara

President Obama's most blatant first term abuses can be struck down by the check on Presidential power by an independent judiciary. For example, last year Obama purported to make "recess" appointments to the National Labor Relations Board (NLRB), when the Senate was not in recess. But the first time the NLRB so constituted tries to bring any enforcement action for any violation of any of its regulations, the defendant can nullify the prosecution by arguing it was not authorized by a legally constituted Board.

Similarly, the so-called Consumer Financial Protection Bureau established by Dodd-Frank is blatantly unconstitutional. It is organized under the structure of the Federal Reserve Board, which is not part of the Executive Branch, but technically a private sector organization with government ties. So it is not subject to Executive Branch oversight. Moreover, it is not subject to Congressional oversight and funding either, because it is authorized to draw its funding for its own budget which it alone is authorized to set.

Consequently, it is even more unconstitutional than the Public Company Accounting Oversight Board (PCAOB) established by the Sarbanes Oxley Act, which the Supreme Court struck down in Free Enterprise Fund v. Public Company Accounting Oversight Board in 2010. The Court ruled that the PCAOB lacked Executive Branch oversight and so was unconstitutional as in violation of the doctrine of separation of powers.

As a result, as soon as the Consumer Financial Protection Bureau tries to enforce any of its regulations, the defendant will be able to raise in its defense that the Bureau is unconstitutional and must be struck down.

But Obama has already shown in his first term that he can flout court decisions and orders. Outright lawlessness occurred in the offshore drilling moratorium imposed by Obama's Interior Dept. in response to the 2010 Gulf oil spill. Phil Kerpen recounts in his book Democracy Denied: How Obama Is Ignoring You and Bypassing Congress to Radically Transform America--and How to Stop Him that Obama appointed an expert task force to make recommendations concerning how the federal government should respond to the spill. The task force report featured a recommendation for a six month moratorium on all deepwater drilling activities. But as Kerpen explains, "the recommendation for a moratorium was not supported by the authors of the task force report." Task force authors wrote in a letter to Louisiana Governor Bobby Jindal and Senators David Vitter and Mary Landrieu,


Peter Ferrara

Peter Ferrara is General Counsel for the American Civil Rights Union, a Senior Fellow at the Carleson Center for Public Policy and a senior fellow at the National Center for Policy Analysis.