The Constitution’s Last Hope

burnedconstitutionUnlike Congress, the courts have at least occasionally shown themselves willing to stand up to President Obama’s flagrant, extra-constitutional power grabs.

The Supreme Court ruled 9-0, for example, that Obama could not tell the Senate when it was in session to avoid needing their confirmation of his appointments. That decision, which invalidated the appointment of Richard Cordray as director of the “Consumer Financial Protection Bureau” (CFPB), was one of many like it; Obama touts his job as a former constitutional law professor but has been defeated at the Supreme Court far, far more times than his predecessors.

Alas, by the time the court had ruled, 12 Republicans had caved to Harry Reid’s “nuclear option” threats and voted to confirm Cordray. (Reid, of course, went on to exercise the nuclear option anyway). But five years now after he was initially appointed, Cordray is again the subject of a court’s ire.

The pivotal U.S. Court of Appeals for the District of Columbia Circuit has issued a withering assault on what it calls the “dangerous,” “vast,” and “unaccountable” power granted to the CFPB director in the 2010 Dodd-Frank law.

“The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency,” the court wrote in its Oct. 11 decision.

Because the D.C. Circuit is considered the most influential federal court other than the Supreme Court, the ruling is a glimmer of hope for the Constitution’s ability to weather the last eight years.

Obama, working with the Democratic supermajority he enjoyed at the beginning of his first term, left a veritable minefield of new agencies and offices that were given vast, unchecked authority similar to the CFPB.

One of the most dangerous examples is the “Center for Medicare and Medicaid Innovation” (CMMI) buried in the fine print of Obamacare.

The office, apparently the clever masterpiece of an evil genius, purportedly exists for the benign purpose of conducting pilot studies on how to reduce costs to the government. The catch is its director, having deemed any of these “pilot studies” a success, is granted the authority to waive preexisting Medicare statutes and implement the studies as the government’s new Medicare policies.

In other words, Congress gave a federal agency the explicit power to rewrite the laws it’s supposed to be enforcing.

The “tell” this was never envisioned as some innocuous cost-cutting exercise is that one of CMMI’s first “pilot studies” will be conducted on a full 75 percent of Medicare patients, making an absurd mockery of what a pilot study, traditionally conducted on small, usually voluntary sub-population, is.

A judiciary that followed the lead of the D.C. Circuit in overturning the CMMI and the many agencies like it could put a serious dent in the damage to the traditional checks and balances envisioned by the Founding Fathers and kept mostly intact until now.

Is it overwrought to say such a development is the Constitution’s “last hope”? Here’s why not.

The extra-constitutional power grabs of the Obama era cannot be laid at the feet of Obama alone. For one thing, many of them required Congress’s collaboration. For another, congressional Democrats have demonstrated they are willing – eager, in fact – to sacrifice Congress’s institutional standing for left-wing policies.And Hillary Clinton has herself vowed to take key usurpations like Obama’s executive amnesty even further.

Frustrated with their inability to win the battle in Congress in recent years, Democrats are starting to abandon the goal itself, plotting to cede their power to an ever-more-powerful executive.

The elites of one of the United States’ major political parties, in other words, now appear to be uniting against the idea of Congress.

The courts remain, in the minds of the populace, the arbiters of what the Constitution means. It is up to them to undo at least the worst of the CFPBs and CMMIs we have inherited from the Obama era.