That's Incredible!

Recess. Via.

Charles Krauthammer Explains Obama's Lawlessness in 50 Seconds

Yes, if he'd given it any more time he'd certainly have blundered into saying something true.

During an interview on Fox News’ “Special Report,” columnist Charles Krauthammer called President Obama’s executive actions “unbelievably unconstitutional” and lawless.

"Credibly unconstitutional" would be like George Bush's secret executive order of 2002 permitting the NSA to eavesdrop on phone calls made in the US by citizens and [jump]
others without a warrant, publicly exposed in 2005* and abandoned in 2007 (some people believe they're still doing it, but to the extent that they do it is either inadvertent or a clear violation of NSA official policy and President Obama's expressed intentions). "Unbelievably unconstitutional" is when the president acting as "chief executive" (where does the Constitution say he can do that?) decides to delay implementation of a provision (or "idiotic regulation" as Charles Krauthammer calls it) of a huge and complex law whose implementation is already spread out over a five-year period.

Krauthammer pointed to a double standard in Washington and asserted that if the President were a Republican, “the people would be up in arms and would be impeaching.”

How well I remember after the conviction, when President Cheney personally led the troops to the National Mall to quell the scythe-wielding mobs of Chomsky's Rebellion.

Heritage Foundation Legal Fellow Andrew Kloster, who has argued that Obama’s unilaterally raising the minimum wage is likely unlawful, told The Foundry that Krauthammer is absolutely correct that the President Obama has taken an unlawful “go it alone” approach.

What'd I tell you? Fifth paragraph of the report and they end up with a fragment of truthfulness. Not that the executive order raising the minimum wage for Federal contract workers is in any way unconstitutional or unlawful** but that Kloster really did argue against it; acknowledging that the president does have the authority to do it:

the Service Contract Act of 1965 requires that any contract for service work with the federal government (for example, security guards or cafeteria workers at federal buildings) include a provision specifying a minimum wage. This minimum wage for a federal contract shall be “determined by the Secretary [of Labor] or the Secretary’s authorized representative..."

but reminding us that he is not supposed to do it just any old how:

federal law requires that the default federal contract wage not be pulled out of a hat: rather, it must be assessed “in accordance with prevailing rates in the locality.”

Since Kloster doesn't know, as he notes, what the prevailing wage is (a nice little rundown on who will benefit from Obama's action and how much is here), or what "in accordance" means (hint: it doesn't mean "equal to", in English), it follows that if an employer doesn't get a contract because the wages he pays are too low he might try suing (I think he's almost certain to fail), or, as Krauthammer would say, Obama's order is "unbelievably unconstitutional".

Kloster noted that Obama’s actions are often justified on the grounds that “if Congress won’t act, I will.” He said that is not consistent with the Constitution...

Yes, under the rarely cited "Takes Two to Tango" clause of Article 1, the president is not allowed to exercise any of his powers unless the Houses of Congress are simultaneously exercising theirs, except when it comes to recess appointments, which the president may not make unless the Houses of Congress stop pretending they're not on recess.

Image from the August 2007 recess by BAC.

*Krauthammer wrote at the time:

Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered. (Barbara Boxer, Jonathan Alter, John Dean and various luminaries of the left have already begun floating the idea.) The braying herds have already concluded, Tenet-like, that the president's actions were slam-dunk illegal. It takes a superior mix of partisanship, animus and ignorance to say that.

True, Congress tried to restrict this presidential authority with the Foreign Intelligence Surveillance Act of 1978. It requires that warrants for wiretapping of enemy agents in the United States be obtained from a secret court. But as John Schmidt, associate attorney general in the Clinton administration, wrote: "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms."

That's some theory, that the president has inherent power to go beyond the terms of the legislation he's "faithfully carrying out". Incidentally, what kind of mix of partisanship, animus, and ignorance does it take to go beyond "illegal" to "unbelievably unconstitutional"? I'd call it Kushberry.

**It was done after repeated pleas from members of the Congressional Progressive Caucus, and following the precedent set by, among others, President Johnson in 1965, when he authorized the Secretary of Labor to "ensure equal opportunities for minorities in federal contractors' recruitment, hiring, and training" in Executive Order 11246, which followed precedents from Roosevelt and Eisenhower and in turn served as a precedent for Nixon, and which has survived repeated Supreme Court scrutiny. Wait, did you say minorities? Minorities? Keep working on that outreach, Republicans.

Depiction of recess by R.J. Matson, September 2013. Meant for a caption competition but I think it's more avant-garde to leave the balloon empty.