Tag: Recess appointment

The Man Who Can’t be King

SCOTUS again today. The Court struck down — unanimously — the President’s “recess” appointments to the National Labor Relations Board. I wrote about this before. Congress was in pro forma session and refusing to consider the President’s appointments to various agencies. The President argued they were effectively in recess and appointed people anyway. The Court has now unanimously struck that down with Scalia basically trashing the entire idea of recess appointments as an anachronism. I agree.

This will invalidate some or perhaps all of the decisions made by the NLRB over the recent past. I expressed concern about this before but as hist_ed pointed out, those decisions were illegal (and some were in limbo anyway, pending this case).

For those of you counting: according to Ilya Shapiro, this makes twelve times in the last two and a half years that the Court has unanimously rejected the Obama Administration’s expansive view of federal and executive power. And the liberals still think we’re crazy when we say Obama is over-reaching.

The Court in Recess

Yesterday, the DC Court struck down several of President Obama’s recess appointments:

In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

Recess appointments are intended for when Congress is out of session and there is a dire need. They are not intended to bypass the Congress, even when said Congress are acting like idiots and refusing to do their Constitutional duty. I commented on this a year ago. While chastising the Republicans for refusing to have hearing on necessary appointments, I said:

All that having been said, two wrongs do not make a right. The Democrats pulled this pro forma crap too. Had Bush responded this way, the halls of Congress would have been filled with the sighs of Democrats fainting from such an egregious abuse of the process. Barack Obama, as Senator, was not exactly screaming to end filibusters when he could have done something about it (he was not part of the Gang of 14).

All sides are acting like spoiled little children, playing a game of “he started it.” It’s shit like this that makes me go up to Washington with a 2×4 and start whomping any Senator who gets within range. I don’t give a shit who started it. It needs to stop.

Violating the rules again is not the way to stop it, though. The Republicans got through this when Bush was President by finding Democrats who would let judicial candidates through. Scott Brown, at least, has indicated he would allow votes to proceed and I’m certain other Republicans could be cajoled or shamed into it.

I am nervous about the potential consequences of this decision (actions taken by recess appointees could be ruled invalid, creating complete legal chaos). I also suspect this will go the Supreme Court before it’s decided once and for all (the 11th Circuit previously upheld Bush’s recess appointments). It basically removes the President’s power to make recess appointments since Congress is basically always in at least pro forma session these days. But it seems like the Courts are going to force our legislators and our President to act like adults and actually go through the Constitutional process that is their obligation and duty.

Recess Time

Barack Obama has just made a recess appointment to the Consumer Financial Protection Bureau. He’a also about to make appointments to the National Labor Relations Board. It’s fairly standard for Presidents to make recess appointments. And under Bush, it became standard when the Democrats obstructed appointments to open positions. There’s only one problem: the Senate is not in recess.

Congressional Republicans were furious Wednesday after President Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, arguing the move was unconstitutional because the Senate has met every three or four days over the holiday period and therefore was not on a recess.

“This is an extraordinary and entirely unprecedented power grab by President Obama,” complained House Speaker John Boehner, R-Ohio, in a statement, saying it “would have a devastating effect on the checks and balances that are enshrined in our constitution.”

“This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” said Senate Minority Leader Mitch McConnell, R-Kentucky.

A few caveats here. First, the Senate is only sort of in session. It’s mainly pro forma, pretending to be open precisely to prevent recess appointments. Second, the Republicans have been acting like world class twerps on this matter. They aren’t opposed to Cordray, who is qualified (as was Warren). They are opposed to anyone being appointed to head the CFPB. And their opposition to the NLRB has a similar motivation, since that board — a board authorized by law — is one chair away from no longer being able to legally function. And the NLRB nominees are qualified (one is a Republican). This isn’t just standard filibustering of a controversial candidate. That would be bad enough. This is backdoor effort to disable two agencies that are supposed to exist, no matter how much we might not like them.

I said it when Bush was President; I’ve said it several times since Obama became President: elections have consequences. The Senate approval process is supposed to be a process, not a roadblock used to disable parts of the government. Qualified people should be appointed to positions for which they have been nominated, no matter how much we don’t like the positions or them.

All that having been said, two wrongs do not make a right. The Democrats pulled this pro forma crap too. Had Bush responded this way, the halls of Congress would have been filled with the sighs of Democrats fainting from such an egregious abuse of the process. Barack Obama, as Senator, was not exactly screaming to end filibusters when he could have done something about it (he was not part of the Gang of 14).

All sides are acting like spoiled little children, playing a game of “he started it.” It’s shit like this that makes me go up to Washington with a 2×4 and start whomping any Senator who gets within range. I don’t give a shit who started it. It needs to stop.

Violating the rules again is not the way to stop it, though. The Republicans got through this when Bush was President by finding Democrats who would let judicial candidates through. Scott Brown, at least, has indicated he would allow votes to proceed and I’m certain other Republicans could be cajoled or shamed into it.