The recess appointment of Richard Cordray has produced what appears to be the intended political response. The White House wanted to highlight the GOP blocking not just the head of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. Over the last few days I have been called by various media outfits for a supporting view of the recess appointment of Cordray. However, I do not support the appointments and believe they raise serious constitutional problems.
First let me begin by saying that the blocking of Cordray is wrong and itself raises questions over the dysfunctional effect of the filibuster power. Moreover, the Senate has continued to use its own abusive unchecked powers like blues-slipping, which I have long criticized with recess appointments.
The Cordray controversy, however, combines the controversial use of filibustering with the controversial practice of recess appointments — a perfect storm of dysfunctional actions by both parties. I was highly critical of recess appointments during the Bush administration. These appointments, particularly of judges, circumvents the constitutional process and represents an unchecked power with limited textual support in the constitution. This case in particular is a clear effort to deny the Senate its authority to share the power of appointment of high-ranking officials. It has nothing to do with the merits. I like Cordray, but circumventing the Constitution is no solution to a political stalemate.
Recess appointments do have support in the Constitution. Article II, Section 2 of the U.S. Constitution states:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The power, however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practice necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations. However, Democrats have to stop citing the Republicans as precedent when they vehemently objected to the same practices. If it was wrong then, it is wrong now. Indeed, the brief length of this “recess” makes this a particularly wrong-headed move.
The long practice of judicial appointments is particularly obnoxious in my view. In 2000, Bill Clinton gave Roger L. Gregory a recess appointment to the Fourth Circuit. (He was later renominated Gregory and secured confirmation). In 2004, Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit and William H. Pryor to the Eleventh Circuit Court of Appeals. I have long argued that the Senate should adopt a rule that it would vote against the later confirmation of any judge given such a recess appointment on principle. Citizens are entitled to the guarantee of a federal judge confirmed by the Senate and given life tenure.
The dangers of such appointments is made evident by George Washington’s appointment of South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. I have previously written about Rutledge — a man who was demonstrably deranged, later rejected by the Senate, and attempted suicide.
The Justice’s Office of Legal Counsel in 1989 indicated that presidents cannot make recess appointments during Senate breaks of less than three days — a long-standing guiding principle. For that reason, Congress decided not to break for more than three days this year — a decision clearly within the power of members. In this case, the House refused to consent to the Senate adjourning for more than three days, which is its perogative under the Constitution. Neither house can adjourn without the consent of the other under Article I, Section 5.
Once again, I believe Democrats are blinded by the immediate political controversy and not considering the long-term implications of such appointments. Previously, some of these same members (including Senate Majority Leader Harry Reid (D-Nev.)) used precisely this power to block recess appointments by President Bush.
While this pro forma session may seem like dirty pool, it is clearly constitutional. Moreover, it was not entirely pro forma since three days after going into the session, Congress passed the President’s demand for a two-month payroll tax holiday.
Once again, I am generally opposed to modern recess appointments designed to circumvent political opposition in Congress. However, this is different. If this is a valid recess for such appointments, a president could circumvent the process with the slightest interruption of sessions. Is that the precedent Democrats want to establish. President Obama has already surpassed Richard Nixon in the development of an imperial presidency of unchecked executive powers.
The Framers laid out a detailed process for the appointment and confirmation of officials as a shared power of both the legislative and executive branches. It has rarely been a smooth relationship — shared power often produce tensions whether between siblings in a family or sister branches in a tripartite government. The framers understood and expected such tensions. They used the rivaling interests of the branches to serve as checks and balances. The Administration does not like the fact that the Senate is withholding its consent. However, that is like complaining about the weather. You can rage at the rain or find shelter in our system through compromise.
There is a good chance that a federal court would again avoid such a constitutional challenge by saying that it is a matter for the political branches to work out. Courts have increasingly avoided their responsibility to answer such questions by deferring to the political process when this practice undermines the political process established by the Framers. What is clear is that the President has a recess appointment power and the question is whether there is truly an implied period after which this power may be constitutionally used. That is a difficult question given the ambiguity of the text. However, it is not a close question in terms of the dysfunctional role played by this practice, in my view. It is not something that should be applauded merely because it puts the opposing party in a tough position or fits with a campaign theme.
It seems that this is a good fight to have politically for the White House and certainly it highlights a wedge issue with the GOP. However, it is not good for the Constitution or, in the long run, the country.
Blouise,
If the libertarians, Randians and many Republicans had their way, education would be privatized or made to be done only in the home as home schooling. Jeb Bush is right in the big middle of that effort. Make education private, it becomes the domain of the 1%, and they get to sell the rest of us “learning aids” at a profit. The horrible (and failed) “No Child Left Behind” program was the camel getting his nose into the tent.
One casualty of NCLB was civics education. In many schools, civics was dropped in favor of teaching to the high stakes tests. Civics needs to be a required course in about the eighth or ninth grade. No kid ought to be able to graduate high school without a good grounding in civics. Some of the idiocy expressed by several commenters on this site reflect the absence of civics from their education.
“Civics needs to be a required course in about the eighth or ninth grade. No kid ought to be able to graduate high school without a good grounding in civics.”
OS,
Truer words were never written. The failure to ground the last few generations in Civics has been responsible for much of the ignorance the people have for appreciating the workings of government. I’ve felt for a long time that it was done purposefully by the Corporatists so that fooling people would be easier. History also has been give short shrift and a people that doesn’t know their history are easily misled. As for NCLB it was the height of stupidity (or cupidity) to introduce it and shame on those on the Left who supported it.
“Ultimately the only remedy I see in the long term is mandatory secondary education reform viz a course in basic constitutional law. Decreasing the ignorance just may prevent more logjams in the future.” (Bob, Esq)
It has been my experience that the simplest solution has always proven to be the best. For a democracy to function properly, the electorate must be educated for as James Madison wrote:
“A popular government without popular information or the means of acquiring it is but a prologue to Farce or Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power knowledge gives.” (1788)
What OS said! This situation is a prime example of why these recess appointments are necessary.
Bdaman,
The Cato Institute was created by Bob Crane and Charles Koch, President of Koch Industries. Its directives and writings are libertarian in style and substance.
Any organization controlled by the Koch crime family has no credibility with me, and I suspect most of those who write here.
I have heard several Republican spokesmen in the past couple of days talking about how qualified Mr. Cordray is and what a great fellow he seems to be. Their sole objection to his nomination is that it is their intention to cripple or disable the Consumer Protection Agency, so the big banks and investment firms can continue to behave like the Robber Barons of industry a hundred years ago.
If it is humanly possible, they have no intention of letting Richard Cordray do his job as mandated by law. To allow him to protect consumers is simply too dangerous to profit margins and bonuses to top management. Just one simple anecdote: Here is one widow’s story of her dealings with Bank of America. This is typical, and not entirely unlike my own dealings with BofA. The link takes you to a highly personal account by Kaili Joy Gray, whose husband died in 2010. As far as I am concerned, the Cato Institute, the Koch brothers and those who would try to keep Richard Cordray from doing his job can go straight to hell. I hope the Courts agree if the Republicans file frivolous lawsuits.
http://www.dailykos.com/story/2012/01/06/1052270/-Hey,-Bank-of-America,-how-many-times-do-I-have-to-tell-you-my-husband-is%C2%A0dead
That legal technicality ensures that Cordray’s power will be legally crippled, said Roger Pilon, the founder and director of the Cato Institute’s Center for Constitutional Studies.
“I don’t think he would have the authority to act” because he still hasn’t been confirmed by the Senate, Pilon said. “As soon as he did [try to impose a decision], it would be challenged [in court] by one of the people or entities that is affected.”
http://dailycaller.com/2012/01/06/cordrays-power-stymied-by-2010-law-that-created-his-new-agency/
http://nymag.com/daily/intel/2012/01/grand-strategy-behind-obamas-recess-appointment.html
Rafflaw,
When I say basic, I’m talking about the genesis of the document circa 1787 and a firm understanding of the underlying concept that rights confer power not vice versa.
When you teach that the constitution does as the name suggests and delegates SPECIFICALLY ENUMERATED POWERS, that’s not an issue up for political debate. It’s a mathematical order of operations fundamental to comprehending ANY constitutional issue.
sb: ‘ignorance of the electorate’
Blouise,
Actually, the shit’s not quite that deep; it’s just that ignorance tends to stunt growth.
Bob,Esq.,
The education issue can’t hurt. What I am afraid of is who is deciding what goes into the books? We have seen how the Texas book purchases have impacted the rest of the country.
Mike S.,
I understand your viewpoint however what you ‘re doing is attempting to excuse an unconstitutional act of one party by claiming “the other party started it.” The issue is much larger than the immediate problem of making an appointment with the advice and consent of the senate. The problem is becoming more and more comfortable with ignoring the rules by which our government is designed to run under. The more you rationalize away unconstitutional acts as being politically expedient in a favorable manner, the more you become the frog in a pot of water gradually coming to a boil.
Mike Appleton,
In New York, writs of mandamus are covered under Article 78 of the NYCPLR and the sole issue is whether the party failed to perform a duty prescribed by law. If the common law/Fed standard is the same then it would appear that such a writ would have a chance subject to a few incredibly convincing arguments getting you over the justiciability hurdles of political question and standing.
Ultimately the only remedy I see in the long term is mandatory secondary education reform viz a course in basic constitutional law. Decreasing the ignorance just may prevent more logjams in the future.
One thing about the decision that I think has been overlooked for I see a lot of legal and interesting opinions here,the people understand what these two agencies do,and its a win layman wise.
pete 1, January 6, 2012 at 11:58 pm:
“the senate was never meant to reflect the will of the people.”
Until the passage of the 17th Amendment.
There is a real, not very subtle difference, between reflecting the will of the people and doing the people’s business, I think. Having a functional branch of government shouldn’t be asking too much.
OT:
Cenk Uygur gave JT a nice shout out for his statement to CNN’s Natalie Allen regarding the NDAA in a segment otherwise castigating CNN for their terrible to non-existent coverage of the issue.
http://www.rawstory.com/rs/2012/01/06/cenk-slams-cnn-for-neglecting-indefinite-detention-do-real-news/
First vid contains the kudos.
C-Span really needs to have control of their own cameras and microphones. It should not be at the whim of whoever is in charge–this is news and needs to be covered. I would be in favor of a live feed 24-7 as long as there is anyone speaking or doing any of the people’s business in either chamber.
C-Span is politics in the raw. Not for everyone, but it is making and keeping a public record of what happens that we, the taxpayers, are getting for our money. Lately, it hasn’t been much.
House Democrats Rush Floor Demanding Republicans Come Back To Work, GOP Cuts Off C-SPAN
http://thinkprogress.org/economy/2012/01/06/399555/house-democrats-floor-cspan/
House Minority Leader Nancy Pelosi (D-CA) and a group of Democratic lawmakers took to an empty House floor today to demonstrate that they were willing to work while Republicans lawmakers are at home. “Where are the Republicans?” demanded Assistant to the Minority Leader James Clyburn (R-SC). Joining Pelosi and Clyburn were five other House Democrats who are assigned to the payroll-tax extension conference committee.
Rep. Jeff Denham (R-CA), representing House Republicans, quickly banged his gavel over the Democrats’ voices, and instructed the clerk to stop taking notes of the proceedings. Moments later, the microphones were silenced and C-SPAN’s video feed was cut. (The House leadership controls the cameras and has previously cut video of Democrats on the floor.)
The theatrical stunt also serves to underscore President Obama’s claim this week that Congress is effectively in recess, thus allowing him to make recess appointments, even though the Senate has been holding 30-second long pro-forma sessions.
pete
1, January 6, 2012 at 11:58 pm
the senate was never meant to reflect the will of the people.
*********
True, and in need of periodic repetition.
pete,
soooo … you have been influencing anon nurse 🙂