Words fail. In more ways than one.
Disappointing. Troubling. Absurd.
It’s a surprise to hear that The U.S. Court of Appeals declared President Obama’s January 2012 recess appointments unconstitutional.
Chief Judge David Sentelle of the D.C. Circuit said in the ruling that the National Labor Relations Board appointments and Richard Cordray’s appointment to head the Consumer Financial Protection Bureau are invalid. All of the appointments are important and necessary. I will address the issues that lead to Cordray’s appointment to keep the focus of this diary tight.
The main features of Sentelle’s decision are:
• The Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.
• The recess appointments clause of the U.S. Constitution is limited to intersession recesses, not intra-session adjournments.
• An interpretation of ‘the recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases.
The court dismissed concerns about lengthy position vacancies. “If some administrative inefficiency results . . . that does not empower us to change what the Constitution commands.”
Sentelle’s decision doesn't challenge the legality of recess appointments. Article 2 Section 2 of the Constitution provides for them. Sentelle’s decision says the recess appointments were unconstitutional because the Senate was conducting pro forma sessions at the time.
The practical and sensible Americans who are still a majority don’t give a good goddamn about the definition of a pro forma session, a regular session, or a recess. They just want their elected officials to do their J. O. B.
This mess was made by the thinkers who came to Washington as the Republican freshmen of the 112th Session of Congress.
They came up with a plan. In a June 15, 2011 letter to Speaker John Boehner, House majority leader, Eric Cantor, and House majority whip, Kevin McCarthy, 78 representatives requested that “all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress." Denial of the Senate’s request for a recess would force the Senate into pro forma sessions and recess appointments would be disallowed.
This was a new twist on the strategy the Democrats in the Senate used in 2007 when pro forma sessions kept President Bush from making recess appointments. It was the Senate's decision to do so at the time. Now the scheme would escalate the gamesmanship to an unprecedented level by imposing a House decision on the Senate and stepping on the executive branch’s authority.
Here’s an excerpt from the letter:
We thank you for your shrewd and strategic leadership in preventing the Administration from making recess appointments during the last Senate break. We respectfully request all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress.The winter holiday recess came after a nasty hair pulling between President Obama and the Republican leadership in the House over the extension of unemployment benefits and the payroll tax reduction. Both were set to expire and there was the usual last minute horse trading which left Boehner and Cantor looking rather glum.
Let me begin by saying that under normal circumstances, the House of Representatives should not involve itself in nomination fights [no kidding]. The Founding Fathers clearly intended the Senate to handle the nominees through a vetting process. However, when liberal lobbyists, unions, and community organizers direct the White House to subvert the will of the Senate, extraordinary steps must be taken to return transparency to our government and sanity to our political appointees.
That is why patriots like Representatives Tom Marino, Ben Quayle, Allen West, and 73 other freshmen have joined my efforts to hit the “kill switch” – a provision the Founding Fathers gave the House to utilize when the Senate’s advice and consent is being circumvented by a hostile Administration. This kill switch comes in the form of adjournment resolutions.
It has been argued that the denial by the House of the Senate’s recess request triggered Article 2 Section 3 of the Constitution which says the President can adjourn the Congress if the Houses can't agree on a Time of Adjournment.
"But there is this other provision that says, well, if the two houses themselves can't agree on an adjournment, the president can adjourn Congress," Ritchie says. "It's just that no president has ever exercised that constitutional authority."Clearly the Republicans were jeopardizing the integrity of their own “advice and consent” responsibility in their refusal to consider any nominee to head the CFPB. At the Senate Banking Committee hearing in September 2011, Sen. Richard Shelby, the ranking Republican gave the following statement:
Senator SHELBY. Thank you, Mr. Chairman. I do not think it will surprise anyone to hear that we believe that today’s hearing is quite premature. We do not believe that theSen. Sherrod Brown’s remarks during the same hearing are pertinent:
Committee should consider any nominee to be the Director of the Bureau of Consumer Financial Protection until reforms are adopted to make the Bureau accountable to the American people [he means the GOP's wealthy donors].
Earlier this year, Mr. Chairman, 43 of my Senate colleagues and I sent a letter to President Obama expressing our serious concerns about the Bureau’s lack of accountability. We also proposed three reasonable reforms to the structure of the Bureau. We had hoped to work with the majority to address this issue before the President nominated a Director.
Unfortunately, neither the President nor the majority has made any effort to work with us to improve the accountability of the Bureau. Instead, the President has nominated Mr. Cordray to be the first Director. It is regrettable that the President and the majority
have chosen to ignore our request rather than work with us to improve the Bureau’s accountability.
Sen. Sherrod Brown: I called the Senate historian recently and asked him when was the last time or was there a time when the Senate actually—when a minority in the Senate pledged to block a nominee because that party actually opposed the agency’s very existence. When was the last time that a group of Senators—44, as Senator Shelby points out—signed a letter threatening a filibuster implicitly, saying they will not confirm somebody until we get our way, until we change the law, the structure of the agency? Never happened before until right now. It is unprecedented. And that kind of partisanship is why people are so unhappy with their Government. They see a dysfunctional Government that simply cannot do this.The Republicans’ extortionist tendencies were on display if unrecognized in the confirmation hearing episode. They wanted to make changes to the CPFB which had been legally established with the passage of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act. They couldn't do it by the rules. It would have required the passage of new legislation and the President’s signature and they didn't have the votes, for one thing. As they have done and continue to do, they resorted to ugly coercive demands to have what they want or there would be some form of hell to pay.
Dodd-Frank passed in the House on June 30 2010 with a 237-192 vote along party lines. It passed in the Senate, 60-38, on July 15 2010 on a cloture vote because the Republicans were filibustering. That’s more than fair.
The President’s nominee should have been confirmed or rejected in a proper confirmation hearing but Sen. Shelby said Cordray was “dead on arrival’ as soon as the announcement was made. Cordray’s nomination was filibustered on Dec 8 2011. The Democrats had 53 votes and they were all in favor. But it wasn’t enough. The 45 Republicans who voted “no” prevailed.
Sen. Shelby spelled out his position clearly and on camera. This isn’t advice and consent. Cordray's qualifications were never even considered.
Yesterday, President Obama announced Cordray's renomination. I won't predict anything. I'll wait and see. Please proceed, Republicans.
9:24 AM PT: There is some reference material that I should have linked. This is a Congressional Research Service report that was issued a year ago after the recess appointments. It goes into much greater detail than this diary.