Stephanie Hessler

A look at President Obama’s first term shows his repeated disregard for the Constitution that he has sworn to preserve, protect, and defend. Since taking office, Obama has betrayed contempt for our constitutional system of separation of powers. Our framers established three distinct branches of government so that each would serve as a check on the others, and so that none could trample on individual liberty. Obama has continually circumvented Congress’s constitutional role and he has denigrated the job of the judiciary. These repeated infractions seem to stem from a fundamental disregard for the rule of law and the text of the Constitution.

President Obama, like many leftist constitutional law professors, subscribes to the view that policy results are more important than law. When John Roberts was nominated to be Chief Justice of the United States, Obama was one of only 22 hard-left senators to vote against him, lecturing that, while Roberts might be a brilliant lawyer, “legal process alone will not lead you to a rule of decision.” Indeed, it rarely leads Obama to one. Again and again, he shirks his own duty to defend the Constitution, circumventing the separation of powers if he does not like the outcome that it requires.

For instance, our Constitution gives the Senate a key check on executive power by requiring the president to seek Senate approval to appoint senior officials. Article II provides that the president “shall nominate, and by and with the advice and consent of the Senate shall appoint ... officers of the United States.”

The president may bypass the Senate under only one circumstance: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.” This winter, the Senate did not go into recess and on January 3 conducted a pro forma session. But the next day, the president simply declared the Senate to be “in recess,” though it plainly was not. Then, he purported to appoint several officers, evading the Senate’s constitutional role. It was the first time in U.S. history that a president attempted to make recess appointments when the Senate -- by its own lights -- was not in recess. Obama flouted the plain language of the Constitution, pronouncing a naked assertion of power: “I refuse to take ‘no’ for an answer.” These appointments have been challenged in court, and it is likely that they will be declared unconstitutional.

Stephanie Hessler

Stephanie Hessler is an adjunct fellow at the Manhattan Institute. She served as a constitutional lawyer for the Senate Judiciary Committee, where she advised on terrorist-detention policy.