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Obama and Cordray
President Barack Obama and his filibustered Consumer Financial Protection Bureau nominee, Richard Cordray (Larry Downing/Reuters)
At the Plum Line blog, Jonathan Bernstein writes about the unrelenting obstruction of the Republican minority in the Senate, and President Obama's options.
Blanket refusals to confirm anyone are being used by Republicans—again, a minority in the Senate—to prevent agencies from functioning properly or, in some cases, at all. The poster children? The National Labor Relations Board, which will lose the ability to enforce labor law if no recess appointment is made by early January, and the Consumer Financial Protection Bureau, which cannot fully exercise its authority without a presidential appointee heading it up. Put it together, and you get what some academic observers and longtime  journalists are calling a form of “nullification.”

The president’s options: Obama could declare the current situation, in which the Senate is out of town for an extended period but is holding pro forma sessions every few days, a “recess” sufficient to fulfill the constitutional requirement for a recess appointment. Or, at the request of the Senate, he could use his Article II powers to force a recess and then make appointments. Or, he could use the space between the first and second sessions of the current Congress, no matter how short, to make recess appointments. In my view, each of these would be a far more legitimate reading of the Constitution and precedent than the current, unprecedented obstruction by the Republicans. It is also possible that he could negotiate with Senate Republicans, using the threat of unilateral action as leverage.

A danger, as Bernstein says, is that "Republicans might become even less cooperative with confirming appointments than they have been so far." That's arguably possible, since they have let a few judicial nominations go forward, but not really so much of a problem in an election year in which Republicans are going to do their damnedest to prevent any governance from happening. "We can't wait," the administration has repeated again and again over the last few months in a new, concerted push to both highlight Republican recalcitrance and to focus on executive actions that don't require congressional approval. The nation can't wait on these nominations, either. The answer has to be acting where Congress won't, and making these critical recess appointments.

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Originally posted to Joan McCarter on Wed Dec 28, 2011 at 12:09 PM PST.

Also republished by In Support of Labor and Unions and Daily Kos.

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