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MEMBER DIARY

The Inconvenient Constitution

As a United States Senator, I have sworn an oath to support, defend, and bear true faith and allegiance to the Constitution of the United States. Complying with this Oath is not always convenient. Sometimes this requires voting against legislation that embodies policies I agree with, other times it requires taking a stand when doing so may not be popular.

The Constitution itself is not a document of convenience. It specifies an onerous process – bicameralism and presentment – with which the government must comply to enact legislation. And it imposes separation of government powers and a system of checks and balances between the different branches.

Among those checks and balances is the requirement that the President’s nominations of federal judges and executive officers receive the Advice and Consent of the Senate before they take office, unless they are nominated during a Senate recess.

Events of the last few weeks show just how inconvenient the Constitution can be for politicians who want to get their way at any cost. On January 4, 2012, President Obama attempted to bypass the Senate and unilaterally “recess appoint” those nominees even though the Senate was not in fact in recess.

These are brazen actions with real consequences. As a duly sworn United States Senator I feel duty bound to resist these actions, regardless of the difficulty.

In taking a stand against the President’s unconstitutional assertion of executive power, I have already been targeted by the President himself. In his weekly radio address, the President singled me out, suggesting that I am playing politics with the judicial nominations process.

The Constitution is not partisan. I will oppose any president, regardless of party, who attempts to ignore constitutional limits on executive power. The Senate has an important role in the appointment of federal judges and officers. All members of Congress should be deeply concerned when the executive encroaches on that constitutional function.

The President’s justifications for his appointments are troublingly hollow. The Department of Justice Office of Legal Counsel memorandum on which he relies passes straight over the plain text and original meaning of the Constitution and concludes that the President may determine for himself that the Senate’s pro-forma sessions do not count as sessions for purposes of the Constitution’s Recess Appointments Clause.

It seems as if the President’s response to the inconvenient Constitution is simply to interpret away its restrictions if he doesn’t like them.

I and members of Congress of both parties who care about the Constitution must take a stand. If, as a political branch, the legislature does not protect the Senate’s constitutional right to advise and consent to nominees, it may lose it forever. Doing so would have far-reaching implications for Democrats as well as Republicans.

I call on all Americans – Republicans, Democrats, Independents – to stand with me in defense of this blatant and egregious encroachment on our basic constitutional liberties.

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