President’s appointment of liberal former Ohio Attorney General Richard Cordray to head the powerful Consumer Financial Protection Bureau (CFPB) was a direct assault on the Constitution and the law causing constitutional scholar Jonathan Turley to remark that President Obama has surpassed Richard Nixon in “the development of an imperial presidency of unchecked executive powers.”

Cordray is well aware that the Constitution provides the president with the power of appointment when the Congress is not in session.  But the Congress was not in recess when the President appointed Cordray.  Adding insult to injury, the 2010 law that created the CFPB included a section that says many of the bureau’s new powers are to be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.”  The Senate, obviously, never confirmed Cordray.

Despite these constitutional and legal roadblocks, Cordray has assumed the full power of the office and has started the process of regulating the economy in earnest.

In Birmingham, Alabama, Cordray held a field hearing laying the groundwork for a regulatory assault on the short-term lending industry, as well as, the mortgage and student loan industry.  Cordray seems unconcerned of the constitutional and legal challenges ahead.  He told the Hill newspaper, “I’m going to leave that to others … lawyers are digging into it,” when asked if his appointment would survive a legal challenge.  But he added that “the position was long overdue to be filled.” “We’ve got a lot of work to do for the public to make these markets function effectively,” he said.

Cordray, in a few sentences was able to articulate the president’s view of the Constitution and the economy.

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As Barack Obama announces the beginning of troop withdrawal from Afghanistan, a far bigger issue – one that goes to the heart of American history and government – remains unaddressed.

“That the President has the right to start a war at his pleasure is just completely divorced from the original meaning of the Constitution,” says constitutional scholar Gene Healy.

President Bush declared a war on terror that could theoretically extend into any country accused of harboring terrorists, including the United States itself. President Obama not only expanded the war in Afghanistan soon after taking office, he decided to bomb Libya without consulting Congress.

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When the President ordered the attack on Libya without Congressional authorization, he crossed a very bright Constitutional line that he himself recognized in 2007 when he told the Boston Globe “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

The reason the American Founders reserved the question of war to Congress was that they wanted to assure that so momentous a decision could not be made by a single individual. They had watched European kings plunge their nations into bloody and debilitating wars and wanted to avoid that fate for the American Republic.

The most fatal and consequential decision a nation can make is to go to war, and the American Founders wanted that decision made by all the representatives of the people after careful deliberation. Only when Congress has made that fateful decision does it fall to the President as Commander in Chief to command our armed forces in that war.

The authors of the Constitution were explicit on this point. In Federalist 69, Alexander Hamilton drew a sharp distinction between the American President’s authority as Commander in Chief, which he said “would amount to nothing more than the supreme command and direction of the military and naval forces” and that of the British king who could actually declare war.

To contend that the President has the legal authority to commit an act of war without Congressional approval requires ignoring every word the Constitution’s authors said on this subject – and they said quite a lot.

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Expressing disapproval with some Obama administration actions, many on the right — and some on the left — are complaining that the executive branch wields far too much power.  Similarly, when President George W. Bush was in power, many on the left — and some on the right — complained that the executive branch wielded far too much power.  Seeing this bipartisan concern for unbridled expansion of presidential power and wishing to start restoring the office to its Constitutional limits, Congressman Geoff Davis (R-KY) has introduced the Regulations from the Executive In Need of Scrutiny (REINS) Act.

The REINS Act would require Congressional authorization for any new Major Rule proposed by the executive branch. It now has now has 57 cosponsors, including noted Constitutionalist Rep. Ron Paul (R-TX).  It also enjoys the support of the Chamber of Commerce.  Under REINS, the numerous proposed regulations pertaining to health care, climate change, energy, financial regulation, and our economy would have to be submitted to Congress for approval.   REINS would continue to allow the executive agencies charged with writing rules to propose draft rules, but would end the delegation of Congressional authority that has enabled these agencies to enact them unilaterally.

Our Founding Fathers recognized the pitfalls of an all-powerful chief executive.  Fearing tyranny, our nation did not even have a president until 1789, preferring instead strong states, a weak Congress operating under the auspices of the Articles of Confederation, and no executive branch at all.  As this proved to be too weak for national cohesiveness, our founders drafted the Constitution to provide the nation with three co-equal branches of government: legislative, executive, and judicial.  All three were to operate within the limits defined by the Constitution.

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In politics, temperament matters – it matters a great deal, as Barack Obama has unwittingly shown us time and again.

Some women and men love to posture, talk, debate, and negotiate. Temperamentally, they are suited for a legislative role. It is said – only partly in jest– that, in Washington, DC, the most dangerous space to occupy is that which lies between a United States Senator and a microphone.

Other women and men – think of Winston Churchill, Margaret Thatcher, Indira Ghandi, Golda Meir, and Ronald Reagan – were born to take charge. When Harry Truman put a sign on his desk, reading, “The buck stops here,” he knew what he was talking about. As Alexander Hamilton observed in The Federalist, it is vital that we have in our Constitution a unitary executive because, in human affairs, emergencies are commonplace; secrecy, vigor, and dispatch are often requisite; and, in such circumstances, there has to be someone in high office able, willing, and even eager to take responsibility for the conduct of affairs.

Americans have an instinctive understanding of what is at stake. Ordinarily, they choose as Presidents men with executive experience – men with a track record in directing affairs that can be judged. George Washington, Andrew Jackson, William Henry Harrison, Zachary Taylor, Ulysses S. Grant, and Dwight D. Eisenhower had been prominent generals before they were elected Presidents, and Rutherford B. Hayes, James A. Garfield, Benjamin Harrison, and Theodore Roosevelt had also demonstrated an aptitude for leadership in war.

John Adams, Thomas Jefferson, Martin Van Buren, the younger Roosevelt, Harry Truman, Lyndon Baines Johnson, Richard Nixon, and George H. W. Bush had held the vice-presidency. Jefferson and Van Buren had also been Secretary of State, and the same can be said for James Madison, James Monroe, John Quincy Adams, and James Buchanan. Monroe had also been Secretary of War, and this was true was well for William Howard Taft. Herbert Hoover had managed relief efforts in Europe early in and after World War I; he had served as Food Administrator within the United States after we entered that war; and, from 1921 to 1928, he served as Secretary of Commerce.

Many of the others elected to the presidency had previously held gubernatorial office.

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In a blow to the Federal Communications Commission (FCC) and its Chairman, Julius Genachowski, the U.S. Court of Appeals for the District of Columbia Circuit today ruled against the agency in a case brought by Comcast.  At issue in the court action was the question of whether the FCC currently has sufficient authority to regulate broadband services.  The Court has now determined that it does not.

Already being interpreted as a major slap in the face to the agency, the ruling could have major implications for how Genachowski proceeds in implementing his vision with regard to broadband policy—a vision that critics charge encompasses heavy-handed, excessive and unnecessary government regulation.  As Capitol Confidential has previously reported, Genachowski is a champion of a policy known as “net neutrality,” which is broadly opposed by a coalition of internet service providers (ISPs), communications workers, minority, women’s and artists’ groups, and large numbers of congressional Republicans and Democrats.

The ruling leaves open three options for Genachowski in continuing to push for heightened regulation.  First, the FCC can appeal the decision to the Supreme Court.  Second, the FCC could urge Congress to rewrite legislation.  Third, the FCC could pursue what some observers have dubbed a “sweeping reclassification” of broadband services under an existing set of rules which relate to telephone services.

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Today, in 1792, President George Washington exercised the first Presidential veto. We’re not sure what the bill was, but we trust that Washington made the right choice. (In fact, we think a veto is the proper default position for the executive branch.)

Knowing that the 111th Democrat-Progressive ruled Congress is indeed tyrannical in its endeavors to ram through ObamaCare, the Left continuously touts that the American people want this bill. Now, I have seen the polls and so have you, and so have the Democrats, including Obama, and they clearly know that they American people are vehemently against this healthcare takeover.

This leads me to my next point. I search through our Founder’s words in the Declaration of Independence. I’m searching for guidance, for the Founders must have known there would be tyranny lurking at every corner to deconstruct the nation that they had instituted. So many of us read the founding documents today, dusting them off, reading every word, clinging to every word. And there it is:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. emphasis mine

What’s missing is the how. We have the Right. But, does it go further?  An obligation, perhaps? Do the Founders leave the door open to any effective means? The people have the Right to abolish an oppressive form of government. Because we do not consent, we have the Right to institute a new government–to abolish all that exists and start new. All the entitlements, bribes, kickbacks, deals, unfair taxation–everything.  They give Americans the Right, directive, and ability to dissolve the current tyrannical government.  They knew this would happen.  That is why they give us the “Right” to guard this great nation against future tyranny.

In addition, our Founders, as only Fathers could to, give us the directive in the Declaration of Independence:

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. emphasis mine

It is our duty to ”throw off such government.” Not optional.  An obligation.

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