Transcript:

Since the re-election of Barack Obama to the Presidency, the word ‘impeachment’ has buzzed around much more freely in Washington D.C. Whatever the predicate-- whether it be on going to war without the consent of the Congress, on the overreaching of executive authority in the case of the debate over guns, or a number of other potentials-- the talk of impeachment, and the reassertion of the separation of powers of our federal government, has grown in volume.

Now, on the top-down question of the separation of the distinct branches of the government, the federal courts have dealt a decisive blow to the Obama administration, in a 47 page ruling delivered by the United States Court of Appeals for the District of Columbia last Friday.

This was no 'shot across the bow'.

The specific case addressed was an appeal of a decision taken by the National Labor Relations Board, filed on the grounds that that particular decision was illegal, as three of its five members had been appointed as alleged ‘recess appointments’ by Obama, while the Congress was not in recess. This was done on January 4th of last year, when the Senate had declared itself in {pro forma} session; Barack Obama asserted that he could determine whether or not the Senate was in session, and made the appointments bypassing Article 2, section 2 of the Federal Constitution which says, in speaking about the President’s power to make appointments: “... and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: ...”

In a memorandum issued by the Office of Legal Council, cited by the court in their ruling, the administration asserted their supposed ‘right’ to bypass this element of the Federal Constitution, writing that “the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”

The federal court responded to this, writing: “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers. The checks and balances that the Constitution placed on each branch of government serve as”-- and here, they cited a 1976 court decision-- a “’self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.'” They continue: “An interpretation of `the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

One of the arguments by the National Labor Relations Board, was that the appointments must be upheld, lest the President were left “...unable to fulfill his chief constitutional obligation to ‘take Care that the Laws be faithfully executed’,” which is the last part of the third section of article 3. In other words: the notion of the Unitary Executive, and Carl Schmitt-- the notion that, in order to preserve ‘administrative efficiency’, the Executive has leeway to disregard the Federal Constitution.

To this, the federal court responded, writing: "We cannot accept an interpretation of the Constitution completely divorced from its original meaning in order to resolve exigencies created by --and equally remediable by --the executive and legislative branches… In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands. As the Supreme Court observed in INS v. Chadha, `the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.' 4562 U.S. at 994. It bears emphasis that `[c]onvenience and efficiency are not the primary objectives or the hallmarks of democratic government. Idim."

Elsewhere, they state: "The Constitution's separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people's rights that suffer when one branch encroaches on another"

And: "The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments... Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law."

As the court said at the outset: "...while the posture of the petition is routine, as it developed, our review is not." In spite of what Jay Carney had to say when asked about the ruling during a press briefing later that day, this reaffirmation of the power of the Federal Constitution extends beyond the simple case of the National Labor Relations Board. While both houses of Congress have talked about the importance of the separation of powers, this decision by the courts has {exercised} this unique and precious element of our system of government. They have put the President in check. This has opened the gates for action against Barack Obama, on many different fronts. In terms of the particular case, the administration has a few options-- they can ask for a rehearing by the same panel; they can seek an {en banc} hearing by the entire D.C. Circuit; or they can go directly to the Supreme Court.

But, regardless of the course they take, the Federal Constitution has been reaffirmed, and put into action, by the judiciary branch. This is a blow to the Barack Obama administration from which they may not be able to recover. For more on this, I direct your attention to the Friday Webcast, where Mr. LaRouche had a lot to say on this; also, we’re preparing a short video production on this for the LaRouchePAC site, so stay tuned for that.

Otherwise, I can say that this week’s Policy Discussion ought to be very exciting, as we have the members of the committee in town coming off of the Schiller Institute conference in New York this past Saturday. The conference was the second in a series of conferences on the New Paradigm which is required, not merely to avert the present crisis, but to actively create the conditions-- the maturity, if you will-- of our society and culture such that a crisis such as the present could never, ever, happen again. I’m not in a position to try to recreate the beauty of that conference here in this broadcast, but I will say that it was well-attended, and that the panels-- especially the music-- are in the process of publication-- and in the meantime, I direct your attention to the Schiller Institute site for selections from the proceedings of the first conference which took place in Germany late last year; the url for that is newparadigm.schillerinstitute.com.

Tune in every day around the lunch hour-- or mid morning if you're on the west coast for this podcast. Stay tuned for this week’s Policy Discussion featuring Mr. LaRouche-- I’m sure it’s going to be extra-special what with the members of the Policy Committee all in one place.

Become a member of the LaRouche Political Action Committee, and fight with us! You can sign up directly from the website, or call our national center at 1.800.929.7566.

This is Dennis Mason. It is Monday, January 28th; We'll see you tomorrow.