In a Washington Post editorial Thursday, Edwin Meese, the former U.S. Attorney General under President Ronald Reagan, and Todd Gaziano, Director of the Heritage Foundation’s Center for Legal and Judicial Studies, wrote that President Obama’s unilateral appointment of three individuals to the National Labor Relations Board, and of Richard Cordray to head the new Consumer Financial Protection Bureau, while the Senate was not in recess, is a “breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

The authors asserted:

…never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

The beauty of this editorial is that Mr. Meese and Mr. Gaziano provide instruction to handle this rogue president who continues to thumb his nose at the Constitution. They continue:

President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules…Congressional leaders of both parties must vigorously (though thoughtfully) defend their prerogatives. Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all “must-pass” legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.

The authors conclude:

If Congress does not resist, the injury is not just to its branch but ultimately to the people.

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A second federal judge has just ruled that Congress exceeded its constitutional authority when it mandated that most Americans must purchase health insurance starting in 2014.

Whatever the Supreme Court eventually decides on that constitutional question, the so-called “individual mandate” is an unprecedented expansion of government power.

The government has long claimed the power to coerce you not to act in specific ways.  In other words, the government says “You can’t do X.”  This happens, for example, when a law says you can’t drive above the speed limit or steal from your neighbor.

The government also claims the power to coerce you to act in specific ways, but when it does so, it rarely says “You must do X.”  Instead it says, “If you choose to do X, you must do X in a certain manner.”  For example, if you choose to build a house, you must comply with building codes.  Or it says, “If you choose to do X, you must do Y as well.”  If you choose to earn taxable income, you must file a tax return and pay a tax; or if you choose to drive a car on public roads, you must purchase auto insurance.

Until now, the only time the federal government has flat out said “You must do X” has been in the case of military conscription.  In that case, the government coercion has had nothing to do with a choice you’ve made.  It has applied merely because you reside in this country. (State laws requiring the education of children are similar.)

The Obamacare individual mandate is like military conscription.

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The Senate is debating the future of American health care, yet one very important issue has yet to get a full and fair debate.  Is the individual mandate that forces citizens to purchase health care insurance a constitutional power of the federal government?  When House Speaker Nancy Pelosi (D-Ca.) was asked this question, she answered with the non sequitur “are you serious?”  Conservatives who respect the idea that the constitution maps out a federal government with limited powers would answer with a loud — “Hell No.”

The Heritage Foundation and the American Center for Law & Justice (ACLJ) recently released legal analysis calling into serious question the constitutionality of the Congress’s plan to force all citizens to purchase health insurance.  These conservative institutions argue that the unprecedented idea, a mandate that all Americans be forced into a contractual agreement with a private party for health insurance, is not a constitutionally permissible activity by the federal government.  My sources tell me that this issue will be raised during the Senate debate on ObamaCare very soon and may open another front in the war against ObamaCare.  (more…)