Should the Supreme Court uphold it, last Friday’s decision by three Reagan-appointees to the D.C. Circuit Appellate Court appears at first glance to rejigger the balance of power between Congress and the president. The appellate justices struck down three recess appointments that President Obama had made to the five-member National Labor Relations Board during the break between the 2011 and 2012 sessions of Congress partly on the grounds that Congress wasn’t formally in recess, since one and sometimes two Republicans showed up to nominally keep it in session for the sole reason of denying Obama the right to recess appointments. Two of the three justices went further, ruling that the president can’t really make recess appointments at all.
It’s not that Obama has made a lot of recess appointments. He’s only made 32—compared to the 171 made by George W. Bush; one of Bush’s appointees was John Bolton to the post of UN ambassador. Presidents have been making recess appointments since the mid-19th century, but this is the first time that the courts have objected. Certainly, the three judges on the D.C. appellate court voiced no such opinions when Bush was president.
The real issue here is who Obama appointed, and to what agencies. The recess appointments he made in the 2011-2012 break were to the NLRB (two Democrats, one Republican) and the directorship of the Consumer Financial Protection Bureau (former Ohio attorney general Richard Cordray). Obama had sent these nominations to the Hill, but invoking the 60-vote supermajority rule, Republicans refused to consider them. They made clear that their problem with Cordray wasn’t Cordray; it was that they opposed the very existence of the Bureau, which had been created as part of Dodd-Frank in 2010. The idea of an agency that represented financial consumers solely—as opposed to other agencies like the Federal Deposit Insurance Corporation and the Controller of the Currency—struck them as a terrible idea. They proposed to amend the act by reconstituting the bureau as an agency, with multiple board members, that represented banks’ interests as well as their consumers. In short, they proposed a house divided against itself.
But Democrats still controlled the Senate in 2011-12, and Obama the White House, so the Republicans had no chance of passing legislation that would reduce the new agency to impotence. However, Dodd-Frank did stipulate that unless the agency had a director, it couldn’t write rules for banks’ treatment of consumers, so Senate Republicans filibustered against Cordray’s confirmation.
A similar logic informed their opposition to confirming Obama’s NLRB, even a Republican who’d been a longtime aide to Republican Senator Mike Enzi (Wyo). When Obama sent his three nominations to the Hill, the Board was down to two of its five members—and the Supreme Court had ruled in 2010 that unless the Board had a quorum of three, it could make no rulings —on unfair labor practices, worker rights, employer rights, anything. Viewing unions as among their primary election-time enemies, Republicans arrived at the expedient of confirming no appointees at all. Obama then made his three recess appointments, but Friday’s court decision means that the board’s rulings over the past year—including recent ones that gave workers the right to discuss their working conditions on Facebook without fear of being fired—probably will not stand. It means that workers illegally denied the right to join a union, or illegally fired during an organizing drive, will have no effective recourse.
What congressional Republicans have done, then, is used their power in the Senate minority not just to deny the president’s appointments, though they had majority support. They have blocked these particular appointments because they effectively repeal the legal authority of these two agencies to do anything. They’ve found a way to repeal some or all of major, foundational laws—the 1935 National Labor Relations Act and 2010’s Dodd-Frank financial reform bill—that empower employees in their workplaces and bank customers, without actually having the votes to repeal the laws. Indeed, this is repeal on the sly, since the laws are still on the books, but largely unenforceable.
So, were the Republican judges really seeking to rein in presidential power or simply advance the GOP’s war on workers and consumers? For 150 years, the president’s recess appointment powers weren’t challenged by Republican jurists. The real issue here looks to be the Republicans’ insistence on absolute unregulated employer and bank autonomy, and holding a minority of seats in the Senate, they’ve managed, for now, to get what they want.
Can’t we revisit filibuster reform?
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