Noted fan of using pro forma Senate sessions to block recess appointments suddenly not such a fan

posted at 7:05 pm on January 4, 2012 by Allahpundit

No separation of powers when there’s an election that needs to be won, I’m afraid. Serious question: Doesn’t Reid, as majority leader, have some control over whether any pro forma sessions are called in the first place? If so, why didn’t he simply refuse to let any be called? That would have strengthened Obama’s argument that the Senate’s in a true recess, not merely some sort of de facto recess where pro forma sessions don’t really count. (Strengthened but not necessarily vindicated, that is.)

Am I wrong about him needing to consent to a pro forma session or does Reid actually want to force this argument by letting those sessions happen, knowing that Obama’s going to attempt a recess appointment anyway?

“I support President Obama’s decision,” he said in a statement…

On the other side of the argument at that time was Reid, who began holding pro forma sessions in 2007 to block Bush nominees.

“I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made,” he said on the Senate floor in 2008, as Democrats blocked a potential recess appointment of Steven Bradbury to be the assistant attorney general for the Justice Department’s Office of Legal Counsel in the Bush administration. Bradbury is one of the attorneys cited by the Obama White House in justifying the Cordray move…

“Republicans have been trying to make an end run around the law by denying this watchdog a leader,” Reid said [today]. “Despite admitting that President Obama’s nominee, Richard Cordray, is qualified for the job, Republicans denied him an up-or-down vote in an effort to substantially weaken the agency.”

In other words, according to Reid, recess appointments can be blocked by a pro forma session when Congress objects to the appointee personally, but when they object to the appointee only because they object to his agency, that’s undue obstructionism that somehow changes the entire constitutional scheme. That is to say, even though the procedures are exactly the same in both cases, it’s the motivation articulated by the appointee’s opponents in Congress that decides the constitutional question. If you believe that, then you also believe that had the GOP said, “The consumer board’s fine, we just don’t like Cordray,” Reid would be denouncing Obama’s power grab too. Ahem. And by the way, where does this standard leave Reid with respect to the three NLRB appointees?

Here’s a theory for you. Maybe Obama and Reid are deliberately pushing the legal envelope on recess appointments because they want to provoke the GOP into some sort of backlash. Maybe?

But in concluding he had broad authority to install his appointments, Obama risks seeing other nominees bottled by Senate Republicans who were privately vowing to retaliate against what they believe is a brazen power grab by the Obama administration. And if Republicans regain control of the Senate in the 2012 elections, it may be even harder for the president to win confirmation of controversial nominees if Obama wins a second term.

“What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” Minority Leader Mitch McConnell (R-Ky.) said.

The gridlock was already bad in the Senate, but Obama’s moves could lead to a nuclear winter in a chamber where one senator could decide to bottle up virtually any presidential nomination any time in the future.

He’d love to see Senate Republicans bottle up his other appointees, though. That’s his whole re-election strategy — the “do-nothing Congress,” thwarting him at every turn. The more high-profile fights he can pick with the GOP in the upper chamber, the more it helps him redefine Congress as the “Republican Congress” even though Democrats control half of it. The only “surprise” here, supposedly, is that he’d stoop to something this cynical and constitutionally dubious to try to demagogue the other party to his own electoral advantage. Anyone surprised?

Anyway, the court battle is coming. That doesn’t mean a court will end up ruling — it might be dismissed as a “political question,” remember — but someone will sue, and soon. Exit question: Which Democrat issued this Reid-like bit of political cover for The One?

“I support President Obama’s appointment today of Richard Cordray to head the CFPB,” [the senator] said in a statement. “I believe he is the right person to lead the agency and help protect consumers from fraud and scams.”

“While I would have strongly preferred that it go through the normal confirmation process, unfortunately the system is completely broken,” [the senator] added. “If we’re going to make progress as a nation, both parties in Washington need to work together to end the procedural gridlock and hyper-partisanship.”

Surprise!


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