King of the Playground

Since Barack Obama took office, the Republican minority in the Senate has abused the institution's anti-majoritarian procedures and "advise and consent" role to prevent President Obama from filling dozens of important executive-branch positions. The unwillingness to hold a vote on the appointment of Richard Cordray to head the Consumer Financial Protection Bureau is a particularly striking example of this. The Republicans do not object to Cordray specifically; they object to the idea of having a watchdog with any teeth acting on behalf of consumers at all and have refused to consider any appointment for the position. As Kevin Drum says, this goes beyond obstructionism and is just straightforward nullification.  A minority of one house is trying essentially to repeal legislation duly passed by majorities of both houses and signed by the president.

The framers did, however, provide one remedy for the constitutional defect being exploited by Senate Republicans: the recess appointment. The president has the authority to temporarily fill executive (and judicial) branch positions when Congress is not in session. Blanket refusals on the part of the Senate to fill appointments at all (as opposed to rejecting individual nominees) can be addressed through this power. In their quest to ensure that the government is as dysfunctional as possible, however, the Senate has started holding “pro forma” sessions in which it does not conduct any business but declares itself in session to prevent the president from filling slots that have been forced to remain open by Senate obstructionism. It's a neat, if grotesquely cynical and anti-democratic, trick.  

In a most welcome move, the Obama administration has decided to proceed with the nomination of Cordray, based on the argument that the pro forma sessions do not, in fact, constitute an end to Senate recesses. This is precisely the response that the Senate Republicans' constitutional envelope-pushing demands. The administration's argument is very strong on the merits. The Obama administration has been justly criticized for not being aggressive enough in responding to Republican obstructionism, so it's a very good thing that it seems finally to have had enough. The executive branch needs to do what it can to retain its legitimate prerogatives and stop the Senate (let alone minority factions in the Senate) from mindlessly thwarting the basic functioning of the government.


I have a few thoughts:
1. I really wish the president would have simply adjourned Congress using his Article II, Sec. 3 power, and then done his recess appointments.
2. I really get a kick out of Republicans last week whining about the president increasing the debt limit because they weren't in session to stamp their feet, then whining today that he can't recess appoint because they are in session.

I think this is a smart and gutsy move from Obama but I have to take issue with your characterization that the pro forma sessions being used by Senate Republicans are "grotesquely cynical and anti-democratic". Democrats did exactly the same thing in the later Bush years. These pro forma sessions are power plays, and Obama saying they don't matter is a power play as well, and maybe there are arguments to be made about whether or not these types of plays are good or bad for the country, but I think attaching moral principle in inappropriate in this case.

Now, it's definitely true that the Democrats weren't using these sessions to prevent disliked agencies from functioning altogether. Nullification is a fair term to use for what Republicans are doing that THAT is a gross overreach of their constitutional authority. But the sessions in and of themselves are just a tactic, and if Obama can bust it then it joins the 200 year old landfill of old political ploys that used to work.

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