woody_zimmerman_118_2007Barack Obama’s first term was a kind of warm-up for the Main Event: i.e., his second term. During his first term he sometimes ignored Constitutionally-mandated rules and separation of powers to accomplish things that he knew the Congress would never countenance. One of his boldest acts – little-noticed in the media, and barely mentioned in the Congress – was his appointment of a director to the Consumer Financial Bureau and three members of the National Labor Relations Board without submitting them as candidates for confirmation by the U. S. Senate. Mr. Obama called them “recess-appointments” – referring to a provision in the Constitution for filling an office when the Senate is not in session. In this case, however, the Senate was technically still in “pro-forma” session. But Mr. Obama declared that the Senate was recessed, and made his appointments anyway.

This peculiar action grew out of another Constitutional provision which specifies that neither house of the Congress may adjourn for more than three days without the permission of the other house. The rule was inserted in Section 5 of Article I to prevent either house from unilaterally stopping the country’s business for partisan political purposes. It also prevented the president from making recess appointments that one house or the other did not desire.

The rule has not often been used, but it was invoked during the presidency of George W. Bush. Democrats, who controlled both houses of Congress, wished to keep Mr. Bush from making recess-appointments. Accordingly, the Senate remained in pro-forma session with only a handful of members present to conduct business. Although Mr. Bush was urged by advisors to treat the Senate as “adjourned,” he deferred to the Constitution’s wording and declined to act.

In the current case, the Republican House of Representatives also wanted to prevent Mr. Obama from making recess appointments, so they did not agree to the Senate’s adjournment at the end of 2011 and the start of 2012. According to the Constitution, this meant the Senate was still in pro-forma session. But Mr. Obama announced that the Senate was adjourned, since Majority Leader Harry Reid had so declared, and he proceeded with his recess-appointments. Mr. Obama thus assumed an extra-Constitutional role of adjudicating a difference between the two houses of Congress – a role reserved exclusively for the Supreme Court.

Sherlock Holmes once said that a dog that failed to bark in the night was the “curious thing.” So it was in this case, with the “dog” being the Congress itself. The Senate was Democrat-controlled, so they could be expected to roll over for Mr. Obama’s move. The Republican Speaker of the House, however, did nothing except bark a little about the “illegal” appointments. The obvious recourse of an appeal to the Supreme Court was not employed. Mr. Obama skated clear, and the matter went down the “memory hole” of the Mainstream Media. I’m not aware that Mitt Romney mentioned it during his campaign for the presidency.

House Minority Leader (and former Speaker) Nancy Pelosi (D-CA) announced that she was “proud of” Mr. Obama for taking this decisive action. Had Mr. Bush done this, Mrs. Pelosi and her fellow-Dems would still be deploring it, and might even have taken it to the Supreme Court.

Later, during his re-election campaign, Mr. Obama declared that children brought to the USA by illegal immigrants would be given a path to citizenship if they were in college or military service, or could otherwise show that they were in lawful standing. In the interest of journalistic honesty, I’ll admit that I consider this a good idea. The difficulty is that the president has no authority to take such an action. The Constitution expressly grants the power of citizenship-naturalization to Congress (Section 8, Paragraph 4). Should the American people support normalizing the status of illegal immigrants’ children, the Congress would have to enact legislation to that effect. The President cannot legally do it by himself. No significant protest has been raised over Mr. Obama’s usurpation of this power. He has again successfully skated round the Constitution, and no one has laid a glove on him.

Speaker Pelosi might have been “proud of” President Obama for going around the Constitution, but she shouldn’t have been. Mr. Obama’s actions automatically become a model for future presidents, who may or may not be politically aligned with Mrs. Pelosi’s views. Thus, a day might come when she will regret her support for such un-Constitutional behavior. But it will be too late. Mr. Obama’s end-run around the Constitution today might empower a later Republican president to go round parts of the Constitution that he doesn’t agree with. Every citizen should be alarmed about this. Such precedents are dangerous, no matter which president is setting them.

An acquaintance of mine has pointed out that the current public attitude, which excuses presidents – especially popular presidents – from obeying laws the rest of us must follow, goes back at least to Bill Clinton. The Estimable Bubba was impeached by a Republican House of Representatives on two charges that would have landed any ordinary citizen in the pokey. One charge involved obstruction of justice (i.e., jury-tampering), and the other involved perjury to a grand jury. In both instances, Mr. Clinton was a defendant in civil proceedings. The two-charge indictment went to the Senate for trial on January 7, 1999.

While there was no real dispute over the veracity of the charges which went to the Senate, some senators argued that they did not rise to the level of impeachable “high crimes and misdemeanors.” This left many citizens wondering what a president’s actions might have to be to reach that level. (Perhaps filching the Senate’s coffee supplies?) Other senators clearly believed that removing the president from office would damage the country and constitute a cure worse than the disease. To that sentiment Henry Hyde made this telling assessment in his summation for the prosecution:

"A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious...We have reduced lying under oath to a breach of etiquette, but only if you are the President...”

Ultimately, most votes fell along strict party lines. The perjury charge failed, with 45 senators (all Republicans) voting “guilty” and 55 senators (45 Democrats and 10 Republicans) voting “not guilty”. The obstruction of justice charge also failed, with 50 senators (all Republicans) voting “guilty” and 50 senators (45 Democrats and five Republicans) voting “not guilty.” By constitutional rule, a two-thirds guilty vote would have been required on either charge to remove the president from office.

Q: What does all this tell us?

A: That a president is virtually invulnerable, even if he is brought up on serious charges that would sink an ordinary citizen.

In other words, the president is not an ordinary citizen. It is important to recognize that Barack Obama is untouchable, no matter what he does in office. He is beyond the reach of voters, and there is no conceivable situation in which he could be seriously brought to account for his actions. The protection furnished by his political allies and his fellow-travelers in the media would prevent it. Even if opponents of his actions should appeal to the Supreme Court and obtain a ruling favorable to their claim, I believe Mr. Obama would ignore the ruling and skate free.

Unless I am greatly mistaken, the president will now feel no restraints on whatever he wishes to do. There is no telling how far he will go to “fundamentally transform” the country – an objective that has not changed, so far as I know. I doubt if “nationalizing” private retirement assets and entire segments of the economy would be beyond him. He intervened in what should have been a normal bankruptcy proceeding for GM and stiffed bond-holders to the tune of $27 billion. Yet not a voice (or lawsuit) was raised. He cannot be stopped. He knows it, and we need to know it, too.

No doubt this sounds dire and alarmist, but Americans ought to recognize the warning signs that others have recognized in the past. One of those who did was the great German pastor and patriot Martin Niemoeller, who made this prescient statement during the era of Nazi ascendancy:

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for me,
and there was no one left to speak for me…

This was spoken during evolving Nazi oppression, of course. Our situation is different, but the warnings still apply to citizens who think they will somehow be exempted from the actions of an out-of-control president and his government. We fumbled the chance to get rid of this man. Now we are going to see what he is really capable of. “Fundamental change” will touch everyone unless we stand together to oppose it. This evokes Ronald Reagan's famous pair of questions:

"If not us, who?

"If not now, when?"