Recess

Barack Obama can swing over the bar

Yesterday, the President made some recess appointments. Normally, presidential appointees need to be confirmed by the congress. However, the Constitution allows the President to make appointments without confirmation when the congress is in recess.

At issue here is the fact that the GOP has been holding “pro-forma” sessions, which technically are not recesses, even though no congress critters are in Washington and no work is being done (which, incidentally, is not unlike actual sessions). This tactic is explicitly being used to prevent recess appointments. But the President did it anyways. The legality of this is unclear, as the Constitution does not define what a recess is.

Ezra Klein has an excellent piece about this (emphasis mine):

The less obvious, but perhaps more true, interpretation is that Wednesday’s appointments are a salvo in an ongoing war over a controversial tactic that’s Thomas Mann has dubbed“a modern-day form of nullification.”

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But despite having hundreds of nominees outstanding — including for important positions like the Federal Reserve’s Board of Governors and the FDIC — Obama didn’t pull a Teddy Roosevelt and make 160 appointments on the same day. Why? What makes these four nominees different from all other nominees?

The answer is that, without them, the institutions they’re intended to lead will fail. Obama’s maneuver was about the agencies, not the appointees. In the absence of a director, the CFPB can’t exercise its powers. The expiration of Craig Becker’s term on the NLRB, meanwhile, means the board is about to fall from three members to two members — a number that the Supreme Court has ruled is less than a legal quorum, and so a number that means the NLRB cannot make binding rulings.

This is not an accident: Republicans have straightforwardly argued that they would obstruct the confirmation of any and all nominees to the CFPB until the Obama administration agreed to radically reform the agency. They were, in other words, using their power to block nominations to hold kill or change agencies that they didn’t have the votes to reform through the normal legislative order. Much the same has been happening at the NLRB. A That’s what Mann means when he invokes “nullification”: just as the originalnullification crisis was about states refusing to implement federal laws that their representatives did not have the votes to overturn, the modern-day incarnation features Republicans refusing to implement laws they don’t have the votes to overturn. And this is what Obama is fighting.

I think this is exactly correct, and given the circumstances, Obama was right to make the appointments. However, as Klein notes, the precedent set here is troubling:

Is President Obama setting a worrying precedent by overruling Congress’s intention to remain in pro forma session to recess appoint consumer-finance chief Richard Cordray? Absolutely. Liberals would be hitting the roof if George W. Bush did this. Has Congress been creating a worrying precedent by blocking record numbers of appointments and holding continuous pro forma sessions in order to deny the president his traditional power to make recess appointments? Without doubt.

For the record I think Obama is handling this correctly by only appointing people to agencies in which the appointments were deliberately stalled to effectively destroy the agency. But don’t doubt, even for a second, that if courts uphold this tactic, it will be abused. Maybe not by Obama, but it will happen eventually. Klein calls it governing by loophole:

You can get the gory procedural details from Brad Plumer, but I would observe that this is a further descent into government by loophole: One side figures out how to twist the rules to their advantage, the other side twists a different rule in response, and soon enough, you have a war of procedural interpretations rather than a vote on the floor of both chambers of Congress.

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This is no way to govern. Bills should pass either by 60 votes or 51 votes, but not by both. The president should be able to unilaterally make appointments or be unable to unilaterally make appointments, but not both. As we’ve trended towards more loophole-driven minority obstruction in the Senate, the majority has tried to assert its will through loopholes. But the result is an increasingly unpredictable and opaque political system that doesn’t work well for anybody.

I agree. The solution to this problem is simple in theory, and near-impossible in practice: Just stop doing these kinds of things.

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