In “Unprecedented” Move, Obama Grows a Spine (and Republicans Have a Cow)

On learning of the President’s recess appointments yesterday to both the new Consumer Financial Protection Bureau and the long-suffering National Labor Relations Board, I was nothing but pleased. I felt encouraged that Obama had finally grown some spine and taken the only action possible, given Republicans’ demonstrated policy of total obstruction. I was surprised to hear this morning, then, about the possibility of legal challenges to the President’s actions; all the news sources I had so far encountered stressed that Obama was “fully within his powers” and that recess appointments like his are far from unprecedented. So I did a little more digging to find out for myself what the problem was.

The right of the President to make appointments while Congress is in recess is indeed specifically outlined in the Constitution, and many Presidents before him have taken advantage of this authority. Apparently, the issue here is whether Congress was actually in “recess” or not: though Congress is on break until January 23, the Republican-held House of Representatives did not agree to a formal recess, opting to hold seconds-long “pro forma sessions” every few days. This strategy is specifically designed to prevent the President from making recess appointments—a strategy the Democrats themselves tried near the end of Bush’s last term—but no consensus exists about whether this blocks the President’s authority in any official way. When the Democrats tried this play during Bush’s presidency, Bush never attempted to make further recess appointments, so no precedent was set. The White House’s legal counsel has apparently advised President Obama that the pro forma sessions are a “gimmick” which he can ignore, and there are plenty of arguments to back up that opinion: see the New York Times’ The Caucus blog, John Elwood (a member of Bush’s Office of Legal Counsel), and the Washington Post for discussions of the question.  Basically, the whole issue hinges on whether you take a “functional” view (Congress is in de facto recess if they are unavailable to carry out their business) or a “formalist” view (Congress is in recess only if they have jumped through the procedural hoops to declare themselves Officially In Recess).

The discussion of whether these appointments is legal is fair.   The practice of avoiding formal adjournment in order to prevent recess appointments is relatively new (as far as I can tell); the question will eventually be decided by the courts–or it won’t, and the next Republican president will do exactly the same thing.  Either way, I think Obama’s gamble is better than doing nothing.  The amazing part about the whole controversy for me is the Republicans’ mock-outraged response and the incredible claim by conservatives that the decision “gives the Republicans the upper hand in their argument that Obama is interested not in governance, just in naked partisan power plays.”  Senate Majority Leader Mitch McConnell bemoaned Obama’s appointments, saying “Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power.” Funny, I’ve been thinking that all along! Maybe Congress should actually get to work on that, Mitch! Mitt Romney, meanwhile, opined that “President Obama’s preference for partisan politics over economic growth will only hurt the millions of middle class families across the country who lose out every time the union bosses win.” Even aside from the up-is-down logic of “union bosses” somehow opposing the interests of middle class families, Romney’s comment brazenly ignores reality: that Obama was merely responding to the Republicans’ long-established preference for partisan politics over economic growth—or any other form of progress. Obama is attempting, here, to govern; Republicans are attempting to prevent governance.  In other words, Republicans are criticizing Obama for the very behavior they are engaged in (and which, incidentally, he is really not guilty of).  Republicans have proven again and again their willingness to obstruct any and all Congressional business in the interest of tarnishing Obama’s reputation; Mitch McConnell has gone on record stating that “the single most important thing we want to achieve is for President Obama to be a one-term president.” Obama, faced with such a Congress, finally did the one thing he could to get business underway. Those of us who thought his promise of “change” referred to Actually Getting Shit Done rather than Bending Over Backward to Be a Nice Guy to My Opponents were cheered by this tactical change.

What I would like to know is whether there is a single Republican politician or talking head out there who sincerely believes the stream of bullshit that comes out of their mouths (McConnell’s one moment of shocking honesty aside), or whether they are engaged in a shameless campaign to say whatever it takes to shape public opinion in their favor, truth be damned. Unfortunately, it works: there are voters out there still unjaded enough to take them at their word. Take a few of the comments to The Hill’s article about the appointments:

Just a matter of time before B.O. suspends the Constitution and declares himself Dictator for Life (for our own good, of course).

BY Avenger on 01/04/2012 at 16:58

The dictator is on the move.

This is the line in the sand.

BY Roger on 01/04/2012 at 16:59

If we allow this to stand, we have a dictatorship, period.

BY borntobepolitical on 01/04/2012 at 17:02

Well, let me know when the Chamber is “Ready to Litigate” and i will donate to the Chamber to fight this in court.

Obama thinks he is King. He needs to be sent back to Chicago in November…BY Dave on 01/04/2012 at 17:02

A dictator? Are you kidding me? I was getting used to his opponents deriding him as a “Socialist” while the rest of us are bitching that he’s not nearly far enough to the Left, but this “dictator” thing is news to me. Obama has been the most milquetoast leader in recent memory, still begging the Republicans to play nice long after it was obvious that bipartisan cooperation was impossible. He has issued far fewer recess appointments than any other President in my lifetime; these most recent ones are “unprecedented” only by taking place within a context of unprecedented obstructionism. And yet Republicans are claiming “an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice” (Boehner), and the faithful keep believing what they’re told. The ease with which conservatives are reinventing reality would be comical if it weren’t so sinister.

Tagged as: alternate reality, Boehner, Congress, McConnell, Obama, politics, recess appointments, the Constitution