Another (pro-Obama) contrarian view on Recessgate

      9 Comments on Another (pro-Obama) contrarian view on Recessgate

Yesterday, I, a generally pro-Obama left-centrist, called Obama’s “non-recess recess” appointment of Richard Cordray an unjustifiable abuse of power. Now, here comes conservative/libertarian blogger Dale Franks, defending President Obama on the issue — “as distateful as it is to me.”

Here’s the blog post. It’s well worth a read if you care about this issue. Money quote:

At the very least, a colorable argument can be made that the mere existence of pro-forma sessions held for the specific purpose of disallowing recess appointments, during a time when the Senate is unable to meet to discharge its advice and consent functions, is itself an unconstitutional usurpation of the president’s Constitutional powers. There is nothing in the Constitution to indicate the president’s recess appointment power is any less important than the Senate’s advice and consent power.

“So it is far from clear,” Franks adds, “that it was the President, rather than the Senate, who was acting in a manner that violated the Constitutional separation of powers.”

Anticipating the obvious objection (“but Senator Obama participated in pro-forma sessions to block Bush appointments!”), Franks also notes:

Whatever the actual practice has been in terms of when presidents made recess appointments, or whether presidents in the past have accepted the practice of pro forma sessions, or even whether someone argued a different view about such appointments in the past, is entirely irrelevant. It might be instructive to know these things in order to make personal judgments about the character of the respective parties, but it has nothing whatsoever to do with the constitutional issues at hand.

I’m not sure if “nothing whatsoever” is quite right, but he’s got a point in that informal precedent and practice with respect to constitutional (or perhaps I should say “Constitution-related”) norms isn’t the same thing as a Supreme Court decision definitively interpreting the Constitution. Not by a long shot.

Anyway, read the whole thing. I don’t know if I’m totally convinced, but Franks does a better job defending Obama’s action than I’ve seen the president himself, or Jay Carney, or Nancy Pelosi, or anyone else on the Left do. Of course, whereas Franks is focusing with laser-like precision on the constitutional issues, those folks have to worry about “personal judgments about the character of the respective parties” — i.e., themselves — so they’re less likely to call attention to the details, and more likely to make broad-brush populist arguments that conceal the underlying point.

But if all that can be said about Obama here is that he’s being a hypocrite, and that he’s engaging in rhetorical sleight of hand to distract from that hypocrisy…well, that’s on par with noting that the Sun rose in the East this morning, and Grant is buried in Grant’s Tomb, and the SEC is a WAR!!! Obama’s a politician. Of course he’s a hypocrite, especially when it comes to matters of procedure. Virtually all politicians are. There is no moral high ground between the two sides when it comes to procedural matters. Everyone advances whatever argument suits their short-term interests at the moment. As someone who cares about procedure, I think that’s a damn shame, but it’s the reality.

9 thoughts on “Another (pro-Obama) contrarian view on Recessgate”

  1. Joe Mama

    From a “centrist” to a “left-centrist” in less than 24 hrs? You’ll be a Maoist by the time of the conventions 🙂

  2. JD

    The pettiness of both sides annoys me in this situation.

    Your thoughts on the nominee, unless it’s something in dead-girl-live-boy territory, should not enable the prevention of the basic up-or-down vote.

    Elections have consequences.

  3. gahrie

    Elections have consequences.

    Yep, and the 2010 elections gave the Republicans the power to block this confirmation.

  4. Alasdair

    JD #2 – how is it “petty” to block an anti-employment nominee during what is effectively a recession, still ?

    Again, we are still trying to avoid the Tyranny of the Majority, are we not ?

  5. Casey

    Just as I was after my poetry reading at the annual Georgia Peach Festival, President Obama is at risk of being impeached.

  6. David

    “Obama’s a politician. Of course he’s a hypocrite…”

    Bet you never thought you’d be writing that four years ago.

  7. Joe Mama

    Kaus opines that one way way of deciding between Obama’s and the GOP’s interpretations of the Constitution is to look at the mechanisms that would be required to prevent the worst case scenarios for each:

    For the GOP interpretation (formerly known as the Harry Reid interpretation): What’s the remedy if the GOP’s current interpretation prevails? The president’s recess power, remember, would simply disappear when the Senate is controlled by the opposite party and decides never to recess (or when, as in the current case, when the minority party extracts a no-recess concession in negotiations). Maybe the Senate majority even wants to cripple various government agencies.

    But crippling the government is presumably quite unpopular, which is why, say, the appointments of Supreme Court justices aren’t routinely put on indefinite hold. A Senate-controlling party that tried to shut down the Pentagon, for example, or the Social Security Administration would presumably pay a big price at the next election. The less popular the agency, the less big the price. The Consumer Financial Protection Bureau –probably pretty popular! The NLRB? Who knows? Obama’s obviously within his rights to make GOP obstruction of these agencies an election issue. We’ll see how the voters feel. (Is it crazy to think that this sort of battle could be one way to bring the general interest to bear on the fabled special interests, who often control particular agencies they care about?)

    But what if, as now, the party doing the obstructing is in the minority–and is using the Senate’s filibuster rule (which effectively requires a 60-40 supermajority) to hold things up? The answer is that if the minority holdup is really imposing a “transparent and intolerable burden” on the functioning of government then the majority can suck it up and use its power to finally neutralize or eliminate the filibuster rule (Senate Rule 22). If the majority– in this case the Dems–don’t want to eliminate that rule then maybe the burden is not so “intolerable.” Simple and self-executing. A built-in, democratically grounded, check on obstructionism. No judicial intervention required. The sort of system that, say, the Framers of the Constitution might have designed.

    It’s true that under this GOP-backed rule the default result is inaction–even the failure to staff a new government agency. But that’s the Constitution for you. Its default position is almost always inaction. It sets up two houses of Congress, and both of them and the President must all agree for anything to get done, including activating the Consumer Finance Protection Bureau. That’s not an ideal situation. It’s more like a gridlock machine! **** But it’s hard to argue that because the GOP’s interepretation shares the flaws of the Constitution it’s unconstitutional, unless the Constitution is unconstitutional. That would be a ‘high roller” argument.

  9. Alasdair

    On a linguistic note, while accepting that we are in America (where American is spoken), the English language used in the constitution – “See U.S. Const., art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”)” – did any of the recent controversial 4 appointments made by Mr. Obama fill vacancies which match the explicit language stating “Vacancies that may happen during the Recess of the Senate” ?

    Didn’t all 4 of ’em happen while the Senate was officially in session ?

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