Of Journalism 101 and Judgment 000

By Doug Magill

Oblivious to Winston Churchill’s assertion that strategic leadership is an art and not a science, the Plain Dealer has fallen into the trap of confusing journalism with opinion in its reporting on the appointment of Richard Cordray to the Consumer Protection Financial Bureau (CPFB).

Unfortunately, this is to be expected as the paper does not have the whetstone of competition to hone its sensibilities let alone its sense.

President Obama’s “recess” appointment of Cordray was a calculated and strategic move.    Clearly it was extra-Constitutional, and exacerbates the President’s relations with Congress (where is Robert Byrd when you need him?).  Yet, it was a gamble that was as deliberate as it was outrageous.

In its initial article on the appointment (January 4), and in an opinion piece described as a Politifact article (January 17), the Plain Dealer attempts to explain the controversy without giving a modicum of background and context to explain why this is a serious issue.  If the reader were to try to understand this controversy from the paper’s perspective, he would come to the conclusion that Republicans were engaging in gimmicks to prevent the appointment, and expressed lots of outrage that wasn’t really relevant. 

What wasn’t explained was that the Republicans for months had requested a number of changes that would make the bureau more transparent and accountable.  In this they had been joined by a number of Democrat senators.  The President refused to consider these requests, or even respond to them.

So now, although the bureau is to be included as part of the Federal Reserve’s budget, the Fed has no control.  Essentially Corday can set his own budget without any authority by the governing agency to restrain, control, or even understand the bureau’s spending.  No other federal agency is set up this way.

In addition, the bureau has enormously wide-ranging authority, and the director essentially answers to no one, and cannot be removed – even for poor performance.  Again, administrative power that no other federal agency has.  In effect, Cordray is another appointed czar without accountability or control.  This is not only dangerous, it is essentially authoritarian.

Finally, there are no mechanisms in place to measure, evaluate, or constrain any of the rulings or policies that may be promulgated by the bureau.  To compound this, Corday is known for his close ties to securities litigation attorneys who will surely benefit from the rulings to come.

Without a lengthy discussion of Article II of the Constitution, pro-forma sessions of the Senate were perfected by Harry Reid when President Bush was in office, and were used by Senate Democrats to block Bush II appointments.  Bush chose not to challenge the practice.  While not even reporting this historical context, the paper then clearly leapt off the journalism train and declared that “…gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.  Legal experts agree.”

Wow.  Hard to argue with that.

Yet, lots of legal experts disagree, and the weak opinion from the Department of Justice (after the fact)  offered no real justification for what is essentially the current President’s desire to decide whether the Senate was in session.  John Yoo, a law professor at the University of California Berkeley, wrote “The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.”

And just in December this pro-forma Senate passed the bill that continued the payroll tax relief currently in place.

Not only did the Plain Dealer forgo helping its readers understand the context of a momentous constitutional exercise, it chose to overlook the real assault on the powers of the Senate. 

At the same time as the announcement of Cordray’s appointment Obama performed a “recess appointment” of three new members of the National Labor Relations Board.  In all the smoke and fireworks about the CPFB, not much attention was paid to this additional egregious power grab that will have deleterious effects on business, the economy, and the nation as a whole.  By stacking the deck in the NLRB, the president has put business on notice that he not only will be paying his union donors back, but also will be trying to fundamentally change the way employers relate to their employees, and the way that businesses operate in the country. 

The Senate had only been notified a matter of days of these appointments before they were jammed through along with Cordray.  There was no excuse or justification for this.  They had not been held up or even begun to be considered yet.  Obama’s was a pure power play, strategic in its design, and fundamentally an indication of the desire of the President to be unconstrained by the Constitution.

Obama is certainly not the first President to ignore constitutional limitations on his power.  Jefferson ignored the Alien and Sedition Acts, and gave pardons to those that had already been convicted under its auspices.  Jackson torpedoed the Bank of the United States, even though former Presidents, Congress, and the Supreme Court all supported it.  Lincoln famously suspended the writ of habeas corpus while President, without any justifying basis in the Constitution. 

The bigger problem with Obama is the pattern of ignoring or breaking through Constitutional constraints.  In prior circumstances Presidents made decisions to do something extra-Constitutional based on an overriding issue.  Otherwise they remained within the limits proscribed by our founders.  But President Obama’s Libyan adventure in contravention of the War Powers Act clearly showed disregard for its intent by pretending that the use of ordnance there did not constitute a war.  The clear issues of the limits to government power now before the Supreme Court in regard to Obamacare.  An unprecedented 9-0 ruling by the Supreme Court on his administration’s attempt to claim that the First Amendment cannot protect a religious organization’s right to choose its own leaders.  His use of czars which has no precedent in the Constitution, and no oversight by Congress.

All of these examples show a man who wishes to rule by fiat, and has no use for the constraints of a constitutional republic.  These arrogant actions will have long-term effects and foreshadow other decisions that will place Obama above the law.  If anyone had any doubts about his authoritarian intentions, this should serve as clear warning.

The Plain Dealer substituted their judgment for real journalism in not reporting all of the story.  Our republic and our way of life is under assault and we are not being given enough information to understand how, and why.

Doug Magill is a consultant, freelance writer and voice-over talent .  He can be reached at doug@magillmedia.net

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