It’s not my list, it’s Ilya Shapiro’s, but it’s a better use of your time than 95 percent of year-end media crapola.
I’ve been so focused lately on the White House changing ObamaCare’s rules via royal proclamation that I’d forgotten this one:
8. Recess appointments. Last year, President Obama appointed three members of the National Labor Relations Board, as well as the head of the Consumer Financial Protection Bureau, during what he considered to be a Senate recess. But the Senate was still holding “pro forma” sessions every three days—a technique developed by Sen. Harry Reid to thwart Bush recess appointments. (Meanwhile, the Dodd-Frank Act, which created the CFPB, provides that authority remains with the Treasury Secretary until a director is “confirmed by the Senate.”) In January, the D.C. Circuit held the NLRB appointments to be unconstitutional, which ruling White House spokesman Jay Carney said only applied to “one court, one case, one company.”
That was an unusual rebuke. Rarely does O get called on his unconstitutionalities by a federal court, and it’ll be rarer still over the next three years as he packs district and appellate courts with friendly benches via the newly filibuster-less Senate. Which reminds me — there’s a major omission from Shapiro’s list, albeit for understandable reasons: As of 10 days ago, the NSA phone surveillance program is unconstitutional in D.C. That’s just one district, and the leading Supreme Court precedent on the issue remains in the feds’ favor, but it’s hard to shake the sense after the last six months that SCOTUS will cast a more exacting eye on the program once it inevitably lands before them. In the meantime, though, how about this for number 11?
I’ll add an honorable mention too: Obama almost launched non-emergency military action against Syria in August without asking for congressional approval first. That would have been a clear violation of the War Powers Resolution, although virtually no one in Congress beside Rand Paul would have made a stink about it. Hard to complain about O bombing Assad when you’ve already looked the other way at him launching military operations in Libya.
Here’s law prof Jonathan Turley, who testified before Congress earlier this month, arguing that Obama’s now at war with the rule of law. ObamaCare’s not the only important legacy that he’ll leave. And this one’s unlikely to turn out any better than the other.