Judicial Watch • A Constitutional Crisis

A Constitutional Crisis

A Constitutional Crisis

JANUARY 06, 2012

Obama Starts Constitutional Crisis: Installs New Radical Czars

Apparently, “respecting the U.S. Constitution” didn’t make it onto President Obama’s 2012 New Year’s resolution list, as evidenced by his “recess” appointment of anti-business extremist Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Just an few hours later Obama made three additional appointments to the National Labor Relations Board (NLRB), which has become little more than a Big Labor battering ram under this president.

Obama is terming his appointments “recess” appointments. They are nothing of the sort because Congress is not in recess. Article I, Section 5, Clause 4 of the U.S. Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” To prevent any recess appointment, the Republican-controlled House has refused to consent to Senate adjournment, resulting in the Senate coming into pro forma session every three days. But as Ed Meese, who served as Attorney General under Ronald Reagan, points out: these pro forma sessions aren’t gimmicks. The two-month extension of the payroll tax holiday was approved during a pro forma Senate session.

But in an unprecedented power grab, Obama has decided that he can decide when Congress is or is not in session. Meese rightly calls it a “constitutional abuse of a high order.” If this abuse stands, the U.S. Senate’s constitutional role to advise and consent in the confirmation of key executive appointees, already undermined by Obama’s many czar appointments, could become moot.

The response to these outrageous and unconstitutional appointments was swift and severe. The editors at Bloomberg immediately splashed an editorial on its website warning that the “president is playing with fire” and choosing “politics over principle” with these appointments. “He risks an election-year legal challenge that could hamstring the consumer bureau and several other financial regulators whose pending confirmations will probably now stall,” they warn.

Any substantial actions by Obama’s pretender appointees at the CFPB or the NLRB would, it can seriously be argued,  “null and void.”

Nonetheless, Barack Obama appears undeterred by such considerations.

The Cordray appointment, in particular, earned the ire of Senate Republicans who filibustered this nomination in December 2011. According to The Washington Times:

Defying Congress, President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau in a move Republican lawmakers said amounted to an unconstitutional power grab.

The president acted just a day after the Senate held a session – a move that breaks with at least three different precedents which have held that the Senate must be in recess for at least three days before a president can act…

…The appointment in question is former Ohio Attorney General Richard Cordray, whom Mr. Obama tapped to head the CFPB. The board was set up under the new Wall Street regulation bill Democrats powered through in 2010, just before losing their majority in the House.

You may recall that the CFPB was created by the Dodd-Frank monstrosity and got its sea legs under its first head, Elizabeth Warren, another anti-business zealot now running for Senate in Massachusetts. (You can read more about Warren’s troubled past here.)

If Cordray is the “right man for the job” as Barack Obama noted in his remarks, then why would the president need to resort to such extreme measures to get “his guy” in position at the CFPB? Because given Cordray’s controversial background and penchant for inflammatory and irresponsible rhetoric, there is no chance he could survive the confirmation process — especially when you consider that Congress does not control the agency’s purse strings. (The CFPB gets its funding from the Federal Reserve.)

Here’s what I mean by “inflammatory and irresponsible.”

In a scathing editorial when Cordray was first nominated, The Wall Street Journal said that throughout his career, Cordray has demonstrated a “hostility toward business.” The Journal explains:

[Cordray] sued Ally Financial’s GMAC Mortgage over its foreclosure practices-a lawsuit that helped spawn the national robo-signing uproar, which has mushroomed into an effort to force big banks to cough up billions for Democrats to redistribute. He sued rating agencies for grading mortgage-backed securities as safe investments. He sued Bank of America for purportedly hiding losses and bonuses prior to the Merrill Lynch merger. The list of cases is long.

In an interview with the Journal, Cordray also compared employees of a financial services company to the “Nazis at Nuremberg” who said they were just following orders.

And, as John Berlau points out in The American Spectator, “Cordray has long supported ESOP, formerly known as the East Side Organizing Project, an Ohio housing advocacy group that has distinguished itself by storming into banks and launching plastic ‘shark attacks’ on the lawns of private homes.” These are tactics that would make any Wall Street Occupier proud.

But while Cordray was all-too-happy to spew venom at U.S. corporations, the then-Ohio attorney general showed little regard for one of his own constituents, Ohio citizen and small businessman Joe Wurzelbacher, also known as “Joe the Plumber.” Cordray looked the other way while Ohio government officials (and Obama hacks) combed through Mr. Wurzelbacher’s private government files and attempted to dig up dirt and smear his name – all because Mr. Wurzelbacher had the gall to question then-candidate Barack Obama about his tax policies.

Commenting on his decision to bypass Senate confirmation, the president explained, “I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.” The president said it was his “obligation” to ignore the Senate and simply install Cordray.

And following through on his “obligation,” Obama moved quickly to install three more of his cronies over at the NLRB. Obama first announced these three NRLB nominees on December 15. They haven’t been filibustered, they haven’t had their background checks, and no hearings have been scheduled yet by the Democratic-controlled Senate. So Obama thinks it appropriate to install appointees in violation of the law of the land simply because he anticipates opposition? I understand this president fantasizes about being king. But this act shows that he is acting out his fantasy.

According to The Washington Post blogger Greg Sargent, “The move, which is arguably as important as the Cordray appointment, will ratchet up opposition from Republicans and make this an even bigger fight, since they have been attacking the NLRB…” Sargent accurately points out that the president’s appointments will “help energize unions in advance of the 2012 election…”

So, who is it exactly that is putting politics ahead of what’s best for the country?

Barack Obama cannot toss enough bones to his friends in Big Labor. From Obamacare waivers to recess appointments to the NLRB’s controversial Boeing lawsuit, the president seems intent on paying Big Labor in advance for union votes coming his way in November.

What is there to be done about Obama’s power grab? Short of impeachment (which, however extraordinary, for the first time in this presidency ought to be given serious discussion), Congress can make its displeasure known through the appropriations process and by holding up more nominees (which may not be any good given the president’s usurpations this week).

For Judicial Watch’s part, our lawyers and investigators will endeavor to consider a variety of approaches to challenge and investigate this lawlessness.

The Iowa caucuses results this week are newsworthy, but the transformation of our constitutional order by Barack Obama is the big news.

(Judicial Watch has the most comprehensive investigation of Obama’s czars currently available. Click here to read our recent report.)

JW Asks Court to Toss Lawsuit Keeping Taxpayer Funded Tuition for Illegal Aliens off the Maryland Ballot

If you are concerned about taxpayer funded perks for illegal aliens, I have some important news to report.

This week we asked a Maryland Circuit Court to dismiss a lawsuit that would deny Maryland voters an opportunity to consider “tuition benefits” for illegal alien students in the 2012 elections. We filed the motion on behalf of our client, MDPetitions.com, which ran a highly successful (and wholly legal) referendum campaign to allow Maryland voters to have their voices heard on the issue.

According to MDPetition.com’s legal brief, the illegal alien activist group Casa de Maryland and the other plaintiffs that filed the lawsuit are wrong as a matter of law and have not provided sufficient evidence to demonstrate that they are entitled to relief from the court:

Although Plaintiffs move for summary judgment, conspicuously absent from their motion are any affidavits or other admissible evidence demonstrating that they are “aggrieved” persons or registered Maryland voters or otherwise entitled to relief. Plaintiffs’ motion must fail for this reason alone. In addition, Plaintiffs’ motion must fail because Plaintiffs are wrong as a matter of law about whether SB 167 is subject to referendum. It clearly is.

Moreover, not only must Plaintiffs’ motion fail, but the Amended complaint must be dismissed and/or summary judgment be entered against Plaintiffs because they have failed to allege sufficient facts to state a claim upon which relief may be granted and are not entitled to judgment as a matter of law.

By way of review, SB 167, also known as the Maryland DREAM Act, was enacted by the Maryland General Assembly and signed by Governor Martin O’Malley on May 10, 2011. The law enables certain illegal aliens to pay reduced tuition rates at Maryland community colleges and public higher education institutions. MDPetitions.com collected 132,071 signatures, nearly twice the amount required by law, in support of a petition to put SB 167 before voters in a referendum.

Two illegal aliens, several Maryland voters, and the activist group Casa de Maryland challenged the petition drive in court. On October 7, 2011, MDPetitions.com was granted permission to intervene in the lawsuit, which seeks to deny voters an up-or-down vote on SB167.

At first, Casa de Maryland and the other plaintiffs challenged the petition signatures collected by MDPetitions.com, but that didn’t last long.

As I reported to you just before the holidays, on December 5, 2011, Casa de Maryland and the other plaintiffs signed a Joint Stipulation stating they would no longer challenge the “sufficiency and number of the petition signatures.” That left them with one very thin argument — that SB 167 cannot legally be subject to referendum. And it just doesn’t hold water.

As MDPetitions.com argues in its court filing, Maryland voters who signed the petition are exercising their rights under Article XVI, Section 2, of the Maryland Constitution, which unambiguously states: “The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.”

The only limitation on this constitutional right is where the law in question “(1) makes an appropriation of public funds, and (2) is for the purpose of ‘maintaining the State Government’ or ‘maintaining or aiding any public institution.'” Now, here’s how that was defined by the Maryland Court of Appeals: An act by the Maryland Assembly is an “appropriation” if its “primary object is to authorize from the state treasury of a certain sum of money for a specified public object or purpose to which sum is to be applied.”

And how does this exception relate to the MDPetitions.com referendum campaign?

As Judicial Watch argues on behalf of MDPetitions.com, SB 167 is “completely devoid” of such an expenditure of funds. The law is “nothing more than a policy choice by the General Assembly that extends eligibility for reduced, in-state and in-county tuition to a new group of persons…This new policy choice does not authorize the expenditure of any public monies at all, much less a particular amount of public money, for a specific purpose.”

The chairman of MDPetitions.com is Maryland Assembly Delegate Neil Parrott of Washington County; Delegate Patrick McDonough of Baltimore and Harford Counties is its honorary chairman. Both feel strongly that this lawsuit should go no further:

Delegate Parrott: “The voters of Maryland have spoken loudly and clearly that they want to be able to vote to decide whether to give their hard-earned money to subsidize college educations for illegal aliens. This lawsuit from illegal aliens and Casa de Maryland, attempting to deny Marylanders their constitutional right to referendum, should be dismissed so that the voters, not the courts, can decide.”

Delegate McDonough: “I have said from the beginning that this legal action by Casa de Maryland is bizarre. The idea of illegal aliens suing Maryland citizens to prevent them from voting illustrates how much they disrespect citizenship.

“The Maryland DREAM Act, SB 167, is an anti-American bill that takes college educations away from our own citizens and violates federal law. Over 132,000 Marylanders signed this most historic petition to take the SB 167 to referendum, and the voters should decide Maryland’s future.

“In-state college tuition rates are a finite resource and are designed for citizens, not those whose mere presence represents the violation of the rule of law.”

This lawsuit should be dismissed in its entirety. The plaintiffs are desperate to prevent Maryland voters from having a say on taxpayer-subsidized tuition for illegal aliens, but they have now run out of legal arguments. MDPetitions.com abided by the letter of the law and ran a highly successful petition campaign. It’s now time to leave the issue of discounted tuition for illegal aliens to the voters.

Indeed, Casa de Maryland seems to acknowledge that its lawsuit will fail and that voters will have the final word, as it recently announced plans to launch a $10 million fundraising campaign to convince voters that they shouldn’t overturn the illegal alien tuition policy on Election Day.

Once this lawsuit is dismissed, I’m sure voters will see right through any propaganda campaign and they will vote to put a stop to this wasteful practice.

Obama’s Judicial Nominees Deemed “Unqualified” by ABA

Speaking of Obama appointments, I have been sharply critical of the president’s judicial nominees, especially his two selections for the U.S. Supreme Court, Justices Sotomayor and Kagan.

We opposed Justice Sonya Sotomayor’s confirmation. And as I wrote in a letter to the Senate Judiciary Committee opposing the Kagan nomination, the former Obama Solicitor General was “a liberal activist and political operative with no experience as a judge.”

But now, according to a shocking story in The New York Times, sharp criticism of the president’s judicial nominees is coming from a very unlikely place — the ultra leftist American Bar Association (ABA). This story appeared just before Christmas, so the liberal media had a convenient excuse to ignore it. Apparently, the ABA has been quietly rejecting an unprecedented number of Obama’s judicial nominees because they are “not qualified.”

The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships – and nearly all of the prospects given poor ratings were women or members of a minority group, according to interviews.

The White House has chosen not to nominate any person the bar association deemed unqualified, so their identities and negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.

The ABA rejected two other women/minority candidates as “not qualified,” but upgraded them after the White House complained. The New York Times reports that Obama’s legal team has “met several times” with the ABA Chairman to “raise concerns.” (To read: Bully the ABA to lower its standards.)

So how does Obama’s “success” rate fare when compared to the last two presidential administrations?

The number of Obama prospects deemed “not qualified” already exceeds the total number opposed by the group during the eight-year administrations of Presidents Bill Clinton and George W. Bush; the rejection rate is more than three and a half times as high as it was under either of the previous two presidencies, documents and interviews show.

But this is the real kicker. The Obama administration is reportedly “perplexed” by the sky-high number of rejected nominees. White House officials complain that the panelists reviewing the President’s nominees are “placing too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, like government lawyers and law professors.”

Because who wants a Supreme Court Justice with practical experience in the courtroom when you can get a nominee with a proven track record grading term papers and teaching students to cast aside the rule of law in favor of “empathy”?

According to ABA guidelines, “In evaluating the professional qualifications of a prospective nominee, the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.” Now the ABA does note that it will consider other forms of experience, such as teaching or serving on administrative agencies. And it “may” consider “whether opportunities for advancement in the profession for women and members of minority groups were limited.” But even the liberal ABA’s patronizing effort to help lower standards to help politically-correct groups onto the courts couldn’t help the low quality Obama nominees.

While alarming, this story is not surprising. After all, Obama has tried appointing to the federal bench a number of leftist ideologues with no legal experience such as Goodwin Liu, the California law school professor who suspiciously concealed more than 100 of his most controversial speeches, publications and other background materials from the U.S. Senate committee that screens judicial candidates. After failing to earn Senate confirmation for a federal appeals court seat, Liu landed a spot on California’s Supreme Court which only requires state approval.

The ABA deserves some credit for rejecting the Obama administration’s “affirmative action” judicial confirmation scheme, which places a greater emphasis on “diversity” than it does on experience and competence. Let’s hope the ABA does not bend to the considerable pressure being brought to bear by White House lawyers who would prefer the association simply rubber stamp Obama’s unqualified nominees without question.

And this should warn us that the ABA is not perfect – it won’t catch all the unqualified nominees (e.g., then-Solicitor General Elena Kagan). Conservatives and others concerned about a competent and constitutionalist judiciary must monitor carefully the president’s judicial nominations. In that regard, you can count on Judicial Watch to help stand watch.

Until next week,

Tom Fitton
Tom Fitton
President


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