The Nullification Crisis, Part Deux



John C. Calhoun, former vice president and senator from South Carolina.

From its inception as part of Dodd-Frank financial, Republicans have been opposed to the Consumer Financial Protection Bureau, an agency meant to protect consumers from predatory financial practices. In a sane political world, Republicans would register through the usual channels, including elections. If you want to change Washington—or even just an agency—the first order of business is winning elections. 

In the world as it exists, however, Republicans have decided to simply block any attempt at enforcing laws they don’t like. For the CFPB, this means blocking confirmation for its director—former Ohio attorney general Richard Cordray—until the administration agrees to gut the agency and leave consumers more vulnerable to predatory financial practices:

Senate Republicans are renewing their vow to block any nominee to head the Consumer Financial Protection Bureau (CFPB) unless major changes are made to its structure.

In a letter sent to President Obama on Friday, 43 Republican senators committed to refusing approval of any nominee to head the consumer watchdog until the bureau underwent significant reform. Lawmakers signing on to the letter included Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Mike Crapo (R-Idaho), the ranking member of the Senate Banking Committee.

It’s true the Constitution gives senators the power to offer “advice and consent” to the president when it comes to confirming nominees. But it’s extremely rare for the Senate to deny confirmation—it’s a move reserved for egregious misconduct or “blatant unsuitability.” And for good reason: The executive branch couldn’t function if every nominee were held up by the Senate.

With that said, it would be one thing if Cordray were unsuited for the post—then, Republicans would have reason to block his confirmation. Indeed, you could even make the case that Republicans would be justified in blocking a nominee who was too liberal, thus forcing a more moderate choice from the president. But blanket objections to any nominee—out of opposition to the agency itself—is an unacceptable and unprecedented abuse of Senate powers. Far from offering “advice and consent,” GOP senators are using the confirmation process to block implementation of laws passed by Congress and signed by the president.

Two years ago, Brookings Institute scholar Thomas Mann described this tactic as the “new nullification,” and it fits—a small minority is refusing to fill posts because it doesn’t like the law that authorizes the position. It’s a call back to the antebellum idea, advanced by South Carolina’s John C. Calhoun, that states are empowered to block laws they deem unconstitutional. This new nullification is less dramatic—the public doesn’t pay attention to congressional maneuvering—but arguably more effective; a recess appointment was required to give the CFPB a director, and even that’s in jeopardy now that the D.C. Circuit Court of Appeals has challenged its legality (each of the court’s three judges were appointed by Republican presidents).

It should be said that this is just the most egregious instance of the new nullification. Congressional Republicans have devoted the last four years to either blocking any action from the Obama administration—from legislation to nominees—or provoking crises in an effort to force concessions and gut Democratic priorities.

The federal government can’t operate when one party has decided to abuse legislative rules and (effectively) nullify laws it doesn’t like. Or, put another way, it’s one thing for the minority to have a voice in legislating. It’s something different—and more dangerous—to cede basic governance to its whims.