Peter Kirsanow comments, here, on President Obama’s scorched-earth “recess” appointments. I look forward to an adjudication in the courts.
This year’s presidential campaign is going to make Iwo Jima look like a pillow-fight. And if you thought U.S. politics were already polarized to the point of total dysfunction, Pat Buchanan argues here, just wait until it’s over — especially if Mr. Obama wins.
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Obama got the advice and consent of the Senate. 53 Senators voted to confirm him in a procedural motion in December.
What happened subsequently is that the Republicans used the filibuster to prevent an up-or-down vote from coming to the floor, effectively amending the Constitution by requiring a super majority of sixty Senators to confirm an appointment, rather than the 50 specified in the Constitution.
Filibusters are unconstitutional? The Democrats didn’t seem to think so when they filibustered Miguel Estrada, Priscilla Owen, Charles W. Pickering, Carolyn Kuhl, David W. McKeague, Henry Saad, Richard Allen Griffin, William H. Pryor, William Gerry Myers III and Janice Rogers Brown back in the Bush administration. (What a memory I have, huh?)
The Recess Appointments Clause seems pretty straightforward by comparison, I think.
Some people must have been absent the day they covered cloture in junior-high social studies.
My point is not that the filibuster is unconstitutional. Rather, it is in response to Kirsanow’s suggestion that advice and consent is an open question. It isn’t. 53 Secnators have already given their consent. Moreover, he ignores the two fundamental differences between the current situation and that of the Bush nominees.
The Constitution gives the Senate majority the right to confirm or veto nominees. In the 2007-2008 Congress, George Bush tried to use recess appointments to confirm nominees who would not have been approved by the Democratic majority. Reid blocked it with the sham maneuver of a pro forma session. Today Senate Republicans are using the filibuster to prevent a majority of Senators to exercise their constitutional prerogative to confirm a nominee.
In both cases, Republicans have acted to prevent the Senate majority from exercising its legitimate constitutional authority through subterfuge.
The other difference is this: the CFPB and the NLRB are all products of existing legislation. The Republicans hate hate hate both agencies, but do not have the votes to get rid of them. The CFPB charter requires a Director be in place to execute much of its mandate, and the NLRB cannot function without a quorum. There is no issue with Cordray as a nominee, and Republicans have said that they will oppose any nominee, regardless of who it is. They are making a mockery of advice and consent by trying to effectively overturn existing law by using parliamentary maneuvers to achieve what they lack the votes to put into law.
So you have a situation where the executive branch, which is tasked with executing the law, is being obstructed from doing so by a minority in the Senate. As a co-equal branch of government, the President is doing the right thing in defying the sham spectacle of thirty second pro forma sessions to maintain the Constitutional prerogatives of both the executive and the Senate majority.
Let’s review. Bush tried to jam through nominees who would never receive the Senate’s consent by using recess appointments. Senate Republicans are trying to circumvent majority rule by using the filibuster, which abrogates the majority’s power to confirm nominees as well as thwarts existing law setting up an agency they dislike but can’t overturn. Obama is acting in a way which preserves the legitimate prerogatives of the executive and the Senate majority. Who is practicing scorched earth politics here?
Here we go again with the anecdotal pissing-contest. So, how do you rate Pelosi’s “‘Deemed’ To Have Passed” trickery? There is probably a leftist talking point to explain away that instance of “scorched earth” politics, which undoubtedly relies on whose ox is being gored.
You make some good points, Peter (though the Bush appointments I mentioned, contrary to the way you described it, were indeed filibustered by a Democratic minority). But procedural shenanigans are just part of the game, and both sides like to to take advantage of them when it it suits their purposes, and cry foul when the other guys do it.
The bottom line here is that Mr. Obama obviously does not have the consent of the Senate until the Senate holds a floor vote (or else why bother with the filibuster at all?). And whether you think it’s a “sham” or not, the Senate was not technically in recess when Mr. Obama made these appointments.
I expect this one will go to the courts, and I expect the appointments to be nullified.