Of Presidential Czars and Constitutional Crises

In this age of crisis, one after another, it would not be surprising if you did not notice that the United States has entered into a constitutional crisis, brought on by recent political moves of President Obama.  The resolution of the crisis will affect the balance of power and authorities in our government, which balance was created by our Founders to protect the freedom of the people.

That balance has worked very well for some 200 years, although elsewhere I have noted that American children no longer seem to use a phrase that was common when I was a child.  In those days not so very long ago a child would commonly defy the intimidation or bullying of another by retorting, “This is a free country.”  Our freedom has been eroding.  It is in serious danger yet again.

Let us pause a moment to reflect upon our written Constitution.  It is a miraculous document, created by people who had only a few years before risked their lives, their fortunes, and their sacred honor to throw off monarchy and tyranny and create a nation where the rights of the individual were not only respected but guarded.  One of the first acts under the Constitution was to add to it a Bill of Rights, as if the Founders wanted to underline that the Constitution was all about personal liberty and preserving it.  Each and every item in the Bill of Rights, our first ten amendments to the Constitution, is a further limitation on the power of government over the rights of the individual.

Americans of various religious faiths, including those who disavow the existence of God, have over the last two centuries recognized the inspired nature and deep wisdom of the Constitution.  Many see and acknowledge even the hand of God directly manifested in its inspiration and promotion (see Doctrine and Covenants 101:80).

The Constitution is based upon the dread, born of painful experience, of entrusting men and women with the power of government over the rest of us.  It takes little historical research to find endless examples of how that power has been abused in nearly all times and places of the world.  Yet anarchy is no less a curse, one with which our Founders were also acquainted.

To balance and counter the two dangers, of tyranny and anarchy, the Founders relied upon a system of government that divided power.  No one would have a monopoly or even a predominance of power.   To begin with, the power of government overall would be strictly limited (and the Bill of Rights limited it even more), all but essential government powers remaining with the citizenry.  Then government power was divided between State and Federal authorities.  The power of the Federal government was further divided between three separate and equal branches of government.

The Founders did not believe in efficient government.  Rather, they believed that an inefficient government was needed as an efficient means of preserving the rights of the citizens.  While dividing authority among three branches, it was intended that neither branch could operate without the eventual cooperation of the others.  As had been seen in the English battles between king and parliament, tyranny and oppression resulted when either branch was able to rule without the consent of the other.

The United States has similarly suffered when weakness of president or congress allowed the other branch of government to operate without adequate check or balance.  The weakness of President Andrew Johnson allowed the tyranny of carpetbaggers with Congressional approval to oppress the people of the broken South following the Civil War, promoting poverty and racial hatred that lasted there for a hundred years.  The tyranny of the Franklin Roosevelt administration turned a deep recession into a Depression that lasted for a decade, disappointing people all around the world in the value of democracy and encouraging the dictators in Italy, Japan, Germany, and the Soviet Union who brought us World War II.

The first two years of the Obama Administration witnessed another period of weakened Congressional power, with a Congress all too ready to do the bidding of the President.  A willing Congress passed on to the executive branch control over the healthcare system, the financial system, and added trillions of dollars to government debt, only narrowly refusing to give bureaucrats authority to control the carbon dioxide that all humans exhale.

In the elections of 2010 the electorate voted to restore the balance by electing a congress that would object to the excesses of the executive branch.  That is precisely what the new members of Congress, with uneven success, have been trying to do over the past year.

President Obama is getting frustrated with the situation.  With the new year he has announced that he is going to try to govern without the Congress.  At a speech in the wealthy Cleveland suburb of Shaker Heights, President Obama said the following, “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.”  Then to emphasize that he means what he says, he announced the appointment of Richard Cordray, the former Attorney General of Ohio, who was defeated in the last election, to be a new federal financial consumer czar, without Senate confirmation.  The Senate has refused to confirm Cordray, but President Obama plans to install him in office anyway.

The appointment confirmation process was one of the protections of the Constitution to limit the power of the President.  The Constitution carefully and explicitly divided the power to give government authority to unelected officials, placing with the President the ability to nominate but requiring that Senate approval be gained before the nominee could take office.  As I can testify from personal experience, it is a frustrating process.  The Founders must have assumed that the Senate would from time to time refuse to consent to some nominees, in which case the President could not proceed, the authority of the government would not be extended to that man or woman.

The Founders were also practical people.  They knew that there would be times when government posts needed to be filled when the Senate was not in session.  So the Constitution allows the President to make temporary appointments without Senate confirmation, but only when the Senate is in recess.  This practical element of the Constitution was not intended to get around the normal procedure requiring in effect President and Senate to agree before giving powers of government to unelected officials unaccountable to the people whom they would govern.

The problem for President Obama is that the Senate has refused to approve the nomination, but they also refuse to go into a recess.  What to do?  President Obama’s solution is to declare on his own that the Senate is in recess and appoint Cordray anyway. 

Hence, our constitutional crisis.  Can the President give governmental power over the people to anyone that he wants without Senate consent?  The Constitution says no, and the President says yes.  Normally, we would all take comfort in the reassurance that the courts will enforce the Constitution, but court decisions of recent decades have shaken confidence.  This presidential act of hubris is surely headed for the courts.  If the justices fail to do their duty, then the powers of unelected federal bureaucrats (unaccountable to people or Congress) will grow, and individual liberty will be significantly eroded.  For now, I am pinning my hopes on the judicial branch rising to the emergency.