Last week, President Obama made a bold move. By making four recess appointments, including naming Richard Corbray to head the Consumer Financial Protection Bureau, while the Senate is still in pro forma session, Obama is directly challenging legislative shenanigans designed exclusively for obstructionism.
First instituted by Senate Majority Leader Harry Reid to prevent George W. Bush from making recess appointments, pro forma sessions in the Senate usually take less than a minute to gavel the chamber open and closed. But that minute is enough, under the letter of the law, to keep the Senate out of recess.
The question now is: Why is Reid allowing the pro forma session to continue? After all, the Democrats hold the majority in the Senate. Surely they would not be interested in preventing a Democratic president from using recess appointments. The answer is an epic display of hooliganism from the other side of the Capitol. Over in the Republican-controlled House, the GOP has chosen to adhere to the provision of the Constitution stating that “neither chamber can adjourn for more than three days without the consent of the other.” By withholding such consent from the Senate, the Senate is forced to conduct the pro forma session, and House Republicans have effectively blocked Obama from making recess appointments.
It’s dirty pool, but that’s politics.
What’s changed is that Obama, unlike Bush, has decided there is a legal basis to challenge the legitimacy of the pro forma session. The Obama administration is saying, in effect, that the Senate is in recess, that a banging gavel and tacit adherence to a couple of the Rules of the Senate do not a session make. Obama and his people have a case, which is worrying a lot of people in Washington.
The Obama administration appears to only be thinking about its ability to make recess appointments. But others, usually Republicans, say that the move is an attack on, and could jeopardize, the Constitutional provision giving the Senate the right to advise and consent to the president’s appointments. If the Senate is indeed in session, and the president can install his appointments without a Senate vote, then ‘advise and consent’ is dead. That view would make sense if the Obama administration agreed that the Senate was in session, and if that were actually true. But it’s not.
The GOP, like the Democrats before them, are exploiting a loophole in the law that while following the letter, as mentioned above, certainly violates the spirit of the law. Obama, and every president after him, has a right to call the opposition on such bullshit. In Obama’s case, the obstructionism from the GOP has been especially galling, as only 57% of his appointees have been confirmed, leaving hundreds in legislative limbo. The GOP is not just denying Obama the people he wants — they are making it harder for government institutions to conduct their business. Normally I shy away from such comparisons, but the GOP is doing legislatively what insurgents do with sabotage and terror. By making governance harder and less effective, they are undermining the legitimacy of the party in power, thereby presenting themselves as a fix for the problems they are creating. It’s dastardly behavior to come from people who supposedly have the best interests of the American people at heart. I think it’s an apt comparison, as the goals are the same.
The tactics of the GOP are anathema to good governance. That being the case, the Obama administration is right in attacking such tactics. Also, rather than undermining the legitimacy of the Obama administration, the GOP’s consistent obstructionism shows that they currently have no business leading this country.
As for the pro forma session, its legitimacy will probably be decided in the courts. The decisions that come down will be defining for our government, but they shouldn’t be transformative. A ruling in favor of the Obama administration will not destroy the Senate’s role in the confirmation process as the GOP claims. Rather, it will return things to the way they were before Harry Reid set things loose. A ruling the other way would be more damaging to governance, in fact, as it would give total obstructionism the imprimatur of Constitutional legitimacy. I hope the president’s lawyers are good.