Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham “pro forma” sessions to prevent the President from exercising a constitutional power.
Like Kevin Drum, I think the public should see the Administration’s reasoning on this. There’s plenty of reason to believe that the whole pro forma session strategy is a sham, I’d just like to say how they come to that reasoning.
However, we may not see that, because for all the posturing and posing on the right, I’m not seeing any legitimate threats of court action over this. One problem with suing the White House over recess appointments would be standing. It’s unclear whether the courts would want to get involved in this at any level. And that may be why you just hear people like Mitch McConnell and John Boehner yelling about this being “unprecedented” without saying that the lawyers have been called or anything like that. McConnell would only determine the move on “uncertain legal territory.”
That’s not all. According to Greg Sargent, you can expect more recess appointments for the National Labor Relations Board. Greg explains why this is so crucial; the board would cease to function without appointments.
Obama is set to appoint Sharon Block, Terence Flynn, and Richard Griffin to the board — something unions have made a big priority for them in the new year. Senate Republicans have opposed the recess appointments to the NLRB on constitutional grounds, but unions charge that Republicans are only interested in rendering the agency inoperative.
Obama’s move, which will help energize unions in advance of the 2012 election, is yet another sign that he is determined to circumvent GOP opposition and make government functional again by any means necessary. It’s another sign that the White House and Dems have abanoned the illusion that anything can be done to secure bipartisan compromise with Republicans on the major items on Obama’s agenda.
As for why the Administration went this route rather than using the inter-session gap to recess appoint Cordray and others, Brian Beutler explains that waiting until the second session of the 112th Congress has begun could pave the way for Cordray to remain in place until the end of 2013, rather than the end of 2012.
Treasury wanted to see some other key financial positions filled along with the Cordray appointment, such as open positions at FDIC and OCC. But by recess-appointing NLRB members to make that agency functional, and by rendering the pro forma gambit moot, Obama reserves the right to make those relatively uncontroversial appointments by recess action later if need be. This is definitely an escalation against Congressional obstruction. And it’s about time.
UPDATE: Via email, here’s AFL-CIO President Rich Trumka’s statement:
We commend the President for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism. Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people.