Ask The Blogster: Could Obama be Impeached because of Cordray's appointment?

On Tuesday, January 4, 2012, President Obama knowingly and intentionally violated his Constitutional Oath to "preserve, protect, and defend the Constitution of the United States" by appointing Richard Cordray Consumer Financial Protection Bureau without the required consent of the Senate.

His decision and action is a very serious threat to his career which

Could lead to his Impeachment

for various reasons. At issue is Obama's assertion that the Senate is not in session and he therefore has the authority to make temporary recess appointments. However, as defined by the Constitution, the Senate is indeed in session which means that Obama cannot make a recess appointment. Although the President is frustrated by this constitutional provision, he (nor any other President) has the authority to decide when the Senate is in session.

Using a Washington Post newspaper article titled Call the Senate's bluff on recess appointments as grounds for his authority, Obama defied the Constitution and jeopordized his career by appointing Cordray.

Here are his statements on the White House blog regarding Cordray's appointment along with our comments.

Excerpts from The White House Blog: America's Consumer Watchdog

The President nominated Mr. Cordray last summer. Unfortunately, Republicans in the Senate blocked his confirmation.

Comment: The Constitution grants the Senate sole authority to confirm appointments when it is in session (Art II Sec 2 CL 2)

And we can’t wait for Republicans in the Senate to act.

Comment: The President does not have authority to disregard Republican Senators (Art II Sec 2 CL 2)

Now, you might hear some folks across the aisle criticize this “recess appointment.”

Comment: The Senate is in session (Art I Sec 5 Clauses 1, 2 & 4) and therefore a recess appointment may not be constitutionally made.

Here are the facts:
The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised.

Comment: True (Art II Sec 2 CL 2)

The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks.

Comment: Not True, this false statement misleads the public (Art I Sec 5 Clauses 1, 2 & 4). Senate sessions have been held and a Journal of its Proceedings have been maintained.

In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds.

Comment: Disgraces the Office of President by labeling Senate sessions as a "gimmick" (Art I Sec 5 Clauses 1, 2 & 4)

But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree.

Comment: False. The President does not have constitutional authority to make appointments to keep the government running when the Senate is in session (Art II Sec 2 CL 2). And, this statement again disgraces the Office of President by labeling Senate sessions as a "gimmick" (Art I Sec 5 Clauses 1, 2 & 4)

In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham “pro forma” sessions to prevent the President from exercising a constitutional power.

Comment: The source for this statement is a Washington Post article written by two attorneys that advocate that the President "Call the Senate's bluff on recess appointments". Referring to "pro forma" Senate sessions as a "sham" indicates that Obama has no respect for the Constitution or the Oath he swore to.

Obama's problem is that the Constitution is "the supreme Law of the Land" (Art VI CL 2).

Like all other Presidents, Obama swore to "preserve, protect and defend the Constitution" (Art II Sec 1 CL 8), and he is bound by that oath to support the Constitution (Art VI CL 3). By declaring that the Senate is not in Session, and disregarding its content regarding Appointments, the President committed perjury which is a high crime or misdemeanor as defined by the source quoted below.

This means that if indeed President Obama did commit perjury, then he is subject to Impeachment (Art II Sec 4).

Many news reporters and talk show hosts are claiming that the Supreme Court may be asked to determine if Obama's action violated the Constitution. However, Article I Section 3 Clause 6 states that the Senate has sole Power to try the President.

It will be interesting to see if the Senate follows through with its authority to ensure that the President abides by his Oath and determine whether President Obama did indeed violate his Constitutional limits and Oath. If so, then he must be Impeached.

Excerpts from Meaning of "High Crimes and Misdemeanors"
Perjury is usually defined as "lying under oath". That is not quite right. The original meaning was "violation of one's oath (or affirmation)". By Art. II Sec. 1 Cl. 8, the president must swear: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." He is bound by this oath in all matters until he leaves office. No additional oath is needed to bind him to tell the truth in anything he says, as telling the truth is pursuant to all matters except perhaps those relating to national security. Any public statement is perjury if it is a lie, and not necessary to deceive an enemy. When a person takes an oath (or affirmation) before giving testimony, he is assuming the role of an official, that of "witness under oath", for the duration of his testimony. That official position entails a special obligation to tell the truth, the whole truth, and nothing but the truth, and in that capacity, one is punishable in a way he would not be as an ordinary person not under oath. Therefore, perjury is a high crime. An official such as the president does not need to take a special oath to become subject to the penalties of perjury. He took an oath, by Art. II Sec. 1 Cl. 8, to "faithfully execute the Office of President of the United States" and to "preserve, protect and defend the Constitution of the United States" to the best of his ability. While he holds that office, he is always under oath, and lying at any time constitutes perjury if it is not justified for national security.