Republicans, Recess Appointments and Hypocrisy

BY: WILSON PARKER

The Heritage Foundation described it as a “tyrannical abuse of power.” Ron Paul lamented, “It is disappointing that a former constitutional-law professor does not understand that the president is not a dictator or king.” Or, in the words of Newt Gingrich, the president has “a total willingness to violate the law and impose an imperial presidency.”

It may sound as if conservatives are warning against an invasion of another sovereign nation, but what has got the GOP up in arms this time seems petty in comparison—they disapprove of President Barack Obama’s recent decision to nominate Richard Cordray as director of the Consumer Financial Protection Bureau. And these statements, which characterize the president’s actions as abuses of power, display at best a tendency toward hyperbolic exaggeration and at worst a fundamental misunderstanding of policymaking. Yes, the circumstances under which the president nominated Cordray present a completely novel constitutional question. That does not mean, however, that the president knowingly violated the Constitution, or even that he violated it at all.

Republicans argue that because the Senate was conducting pro forma sessions, the Senate was not in a recess and therefore the president lacks the authority to make appointments under his recess power. But their argument ignores important constitutional principles. The Constitution provides for the presence of a continual authority to fill vacancies and make appointments to positions. The founders knew that the government might need new ministers quickly, more quickly than the time required for the Senate to convene. That is the rationale behind the Recess Appointment Clause. If a majority of the Senate agrees to recess, the power to deal with appointments and fill vacancies is transferred to the President until the Senate reconvenes.

When the president appointed Cordray, the Senate was not in session. As the Justice Department noted, the Senate cannot “receive communications from the President or participate as a body in making appointments” during these pro forma sessions, so it is incapable of fulfilling its Constitutional role to approve or reject appointments. Thus, to accept the Republican argument that the Senate’s pro forma sessions block the president from exercising his recess appointment power in light of the fact that the Senate is itself unable to confirm anyone would be to acknowledge that there currently exists no power to fill vacancies, in direct defiance of the Constitution.

But wait, Republicans counter, what about the pro forma sessions held by Democrats in 2007 and 2008 to prevent President Bush from making appointments. Surely if those pro forma sessions were enough to block the recess appointment power, they reason, these pro forma sessions must be able to do the same. Once again, they ignore important aspects of constitutional law. As I mentioned before, the Senate must willingly go into recess in order for the president to have the power to make recess appointments. And given that a Democratic majority voted to adopt rules that would ensure “no business [is] conducted” and that “no action or debate” is held during these pro forma sessions, that appears to be the case. In fact, the only reason that pro forma sessions are being held at all is that the House of Representatives and its GOP majority refuse to allow the Senate to adjourn for more than three days at a time. In these sessions, a senator from neighboring Virginia or Maryland may walk onto the floor and bang a gavel once every three days, taking up about 60 seconds of government time. A minute of gavel-banging does not mean, however that the Senate is not in recess.

This is not to say that there is no argument to be made against the constitutionality of the Obama’s actions; the Constitution is unclear about what constitutes a recess, and this situation is legally unprecedented. The president’s position, however, is far stronger than that of his Republican challengers. Furthermore, he has shown considerable restraint and tactfulness in navigating these uncharted constitutional waters. In fact, there are currently (even with these appointments) more than 200 government positions kept vacant by Republican obstructionism.

Important upper level management positions in executive agencies and departments are vacant, and seats on the commissions and Courts of Appeal  remain empty. Our country needs public servants in these positions. President Obama has nominated many candidates, but Republicans never allow his nominees to receive an up-or-down vote. The GOP’s excuses for rejecting candidates frequently lack substance and are obvious attempts at preventing the president from governing effectively. For instance, the Nobel-Prize-winning economist nominated to the Federal Reserve Board of Governors found himself rejected by GOP lawmakers as being “unqualified.”

Instead of filling all 200 of these positions through recess appointments – which he arguably could have done – Obama chose the middle ground and only pushed through nominations on four positions. So what separates these nominations–of Cordray to the Consumer Financial Protection Bureau and the nomination of three officials to the National Labor Relations Board–from the other vacancies? The NLRB requires a quorum of board members in order to issue rulings on unfair employment practices, and most of the CFPB’s powers are defunct without a director. This stands in contrast to other vacancies like the ones on the Courts of Appeal and the Federal Reserve Board of Governors that are not essential to the agencies’ operations. Therefore, out of respect for the complexity of this constitutional issue, President Obama only made nominations that were of the utmost necessity for the continued operation of federal agencies and the enforcement of the law.

The debate over the recess appointments, in turn, leads to the question of whether or not our country can function when one political party can render agencies utterly useless by refusing to confirm anyone to manage them. The fact that a Republican minority aimed at such an end is unconscionable. What is even more preposterous, however, is that the very Republican senators who tried to legislate without a majority, in an obvious subversion of democracy, have the gall to accuse the president of subverting democracy.