A “Wholly Legal Decision”: The Senate Cannot Take Away President Obama’s Recess Appointment Power By Pretending To Work
As ThinkProgress predicted yesterday, congressional Republicans did not wait long to whine that President Obama’s wholly legal decision to recess appoint Richard Cordray is unconstitutional. According to a blog post written by Speaker John Boehner’s staff, the Cordray appointment is unconstitutional because Obama defied an imaginary time-limit on his recess power and failed to respect the Senate’s decision to pretend that it’s actually doing something:
President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).
It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days.
First of all, Boehner needs to learn to count. For constitutional purposes, the Senate has been in recess since December 23. Although a single senator has opened a pretend session that lasts about half a minute — what is known as a “pro forma” session — every three days since then, these pro forma sessions have no impact whatsoever on the president’s recess appointment’s power. As Steven Bradbury and John Elwood, two key constitutional advisors during the Bush Administration, explained in 2010:
Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.
Moreover, even if the Senate could stave off a recess by convening in the Neighborhood of Make Believe, it is simply not true that three days must pass before the president’s recess power kicks in. Though it’s true that Katyal once said that “I think our office has opined the recess has to be longer than 3 days,” an off-the-cuff comment by the Deputy Solicitor General does not have the power to change what the Constitution actually says. As the highest court to consider issue explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”
By: Ian Millhiser, Think Progress, January 4, 2011
Top Tea Party Republican Admits To GOP Hostage Strategy
GOP Rep. Steve King of Iowa is one of the leading spokespeople for the Tea Party wing of the House GOP. With the national press continually asking King whether he’ll be making an endorsement in the Iowa caucuses, he has been built up into something of an important GOP figure.
So it’s good to see that King is candidly admitting that the House Tea Party wing has been employing the threat of a government shutdown as nothing more than a deliberate hostage strategy designed to wring maximum concessions from Democrats.
King made the concession in an interview with Laura Ingraham. Dems are highlighting the interview because King bashes House Speaker John Boehner for his weak leadership, but the bolded portion below is the real news here:
KING: We have not lead in a clear way. American people don’t know what House Republicans believe in, and they surely don’t know what we’re willing to fight for. And I am as disappointed as the public is…
It’s clear to me that Speaker Boehner made a decision, either before, but I am convinced it was at least shortly after the election last November, a year ago last November, that we would not be in a position where we would be blamed for shutting down the government … that’s the only place where you bring the leverage to this Congress, to take on Harry Reid and Barack Obama, is you have to be willing to face a shutdown and you have to have the debate among the American people.
INGRAHAM: You think that would have helped the Republican Party and you guys would be in a better position today if the government had been shut down?
KING: The shutdown isn’t the point so much as, I don’t want the shutdown either. But if you are afraid of the shutdown you can’t have the confrontation and you lose every negotiation along the way.
And there you have it! During each impasse — the first government shutdown fight; the debt ceiling debacle; the payroll tax cut showdown — we keep being told that Tea Partyers really are crazy enough to allow the worst to happen. During the government shutdown fight, we were even told that Tea Partyers viewed that outcome as a positive. Their willingness to take us over a cliff is why Dems simply must make the concessions they’re demanding.
But now a top Tea Party leader has given away the game, admitting that not even Tea Partyers want a shutdown. Creating the impression that they’re willing to let it happen is only about winning maximum concessions in negotiations. Let’s hope Dems keep this in mind the next dozen times this happens.
By: Greg Sargent, The Washington Post Plum Line, January 3, 2011
“The Langoliers Are Coming”: What Boehner Faces In 2012 After Payroll Tax Debacle
In the immediate aftermath of the GOP’s payroll tax debacle, a handful of conservative House Republicans publicly attacked their leaders — particularly Speaker John Boehner (R-OH).
“I am disappointed that our Republican leadership in both the House and Senate chose a course of political expediency rather than standing on conservative principle,” said Rep. Todd Akin (R-MO) in an official statement.
Others appealed to Fox News, where conservatives and Republicans feel more comfortable expounding on party/movement contretemps.
“He’s (Boehner) got a big problem when he comes back,” one anonymous congressman claimed. “He may have a hard time keeping his Speakership after this.”
“We were hung out to dry by our leadership,” said another unnamed member.
The list goes on. But the holidays calmed the backlash, and with a week’s hindsight a consensus of sorts has emerged among party strategists, aides (current and former) and congressional scholars. Not all agree on the question of how well or poorly Boehner handled the situation. But though Boehner’s 2012 won’t be easy, those House conservatives who were seeing blood last week are likely to be disappointed again.
“I don’t think his leadership is going to be taken away from him over the course of the next year,” said Norm Ornstein — a Congress expert at the right-leaning American Enterprise Institute. “But I’m expecting a pretty difficult year ahead for him next year.”
“Going into next year he has to reassert his authority going into the payroll tax debate, and frankly other debates,” said a former senior House aide. “In addition to that he will most likely take a conference-wide stance on the payroll tax fight and will work to fight and win.”
Boehner’s 2012 depends to a huge extent on how much the GOP conference is still spoiling for a fight. If they’re chastened by the horrendous month they had — and thus resigned to ceding the payroll tax issue to the Democrats — then Boehner will have it pretty easy. The payroll tax cut will be extended through the end of the year, and, in a sense, his original judgment will have been vindicated. His members won’t lead the party astray again. But if a substantial number of Republicans return from recess breathing fire, and try once again to use the expiring payroll tax cut to extract massive concessions from Democrats then Boehner and the rest of the GOP are likely in for a politically costly battle.
“When you start with the Republicans rejecting even a dime of taxes on millionaires and you want to take money out of other programs that benefit the middle class or poor people, you’re going to have a tough time doing this,” Ornstein said. “The other part is the Republicans in the House settled on a narrative to justify their action. They said they want a full year payroll tax cut. The fact is a very substantial share of those Rs don’t want anything. They don’t want any payroll tax cut.”
This is correct — and it’s worth recalling that GOP leaders originally solved that problem by tying the payroll tax cut to the Keystone XL oil pipeline. But they already got that — and now that Republicans have built a consensus for a yearlong payroll tax cut almost by accident, it’s unlikely Democrats are going to be willing to concede much of anything to them.
“He tried to throw in this lever, which was this pipeline. Well, they got it,” Ornstein said. “The incentive for Obama to give in more is pretty much zero.”
Despite the unfavorable dynamic for the GOP, most see the worst-case scenario for him as a leadership challenge … in 2013 (assuming the GOP retains its majority in the 2012 elections).
“[Y]ou’re always going to have squeaky wheel members who are never going to be satisfied,” the senior aide said. “And there may be some members who don’t like Boehner who are using it as a way to complain.” However, if the dissent starts creeping beyond that rump in the next couple weeks, “then he’s got a big problem,” the aide says. “[But] I doubt that’s going to happen.”
By: Brian Beutler, Talking Points Memo, December 29, 2011
“Living Dangerously”: The Year Of GOP Hostage-Taking
When the House GOP’s enormous freshman class arrived on Capitol Hill in January, it wasn’t uncommon to hear them sound off on the mistakes their predecessors made in 1995. Despite having shut down the government — twice! — House Republicans under Newt Gingrich had caved too easily, didn’t push hard enough, didn’t embody the true spirit of conservatism.
But the new House leadership wasn’t so sanguine. Many had lived through the Gingrich revolution and its aftermath. Others had been around long enough to hear tales of it. And so they mapped out a strategy specifically designed to avoid what they believe were the party’s ’90s-era mistakes.
In other words, the two factions — the newly energized backbenchers and the veteran leadership — were pulling each other in opposite directions. The tug of war left the House GOP’s strategic center of gravity stuck in an unstable position. The party was committed to fighting as hard as possible, but stopping short of its most conservative members’ slash and burn instincts.
The 2011 version of the House GOP, in not always easy coordination with Senate Republicans, would approve must-pass bills, but only after dragging negotiations down to the wire and extracting as many concessions as possible from Senate Dems and the White House each time. We saw that strategy play out over and over again this year, with mixed results for both parties and largely poor results for the country at large.
Here’s a quick lookback at a year of living dangerously — and the series of recurring crises that it produced.
APRIL: Government Shutdown
This fight set the tone for the remainder of the year. At the tail end of the last Congress, Republicans blocked a bipartisan effort to fund the government through the end of the fiscal year in September 2011. They’d made big gains and wanted an early bite at the apple in the new Congress. With government funding set to expire, House Republicans sought to make good on their pledge to cut $100 billion from domestic federal programs right away. In addition, they sought to attack the Obama administration’s power to govern from the executive branch with scores of legislative riders meant to limit access to women’s health centers, weaken environmental regulations and so on. The administration and Senate Dems sought to limit the damage — but it wasn’t easy. In negotiations that lasted until minutes before the government shutdown, Republicans locked in billions of dollars in budget cuts, and even a few riders, including one that reinstated a ban preventing the District of Columbia from spending local tax dollars on abortion services.
AUGUST: Debt Limit
This is where House Republicans overplayed their hand — but also made, from a conservative point of view, the most substantive gains. Republicans held the country’s borrowing authority hostage. They implicitly threatened to let the country default on its debt obligations unless Democrats agreed to massive cuts to federal programs over the course of a decade. For a time, the White House genuinely saw this as an opening to strike a fiscal “grand bargain” with House Speaker John Boehner. But in an early indication of the limited room Boehner’s conference would give him to deal, those negotiations fell apart over the GOP’s reluctance to increase taxes on the wealthy. So Democrats reverted again to a “contain the damage” strategy. The damage was pretty severe: $1 trillion in cuts to defense and domestic discretionary spending over the next year, enforced through statutory budget caps; a downgrade to the country’s AAA rating by Standard & Poor’s; and, because the Super Committee the debt deal created would ultimately fail, the prospect of another $1.2 trillion in across the board cuts to national security programs, Medicare providers, and other parts of the budget, which are set to kick in on January 1, 2013, unless Congress finds savings elsewhere.
The good news for now is that the budget cuts are somewhat backloaded and won’t become too severe until later in 2012 and 2013. In the meantime, the country’s fiscal fate — whether we’re on a bumpy path toward unwinding the New Deal or toward shoring it up — now hinges on the outcome of the 2012 elections. If a Republican beats President Obama, the GOP will continue to put the squeeze on government revenue and pursue a course of swapping out the automatic defense and Medicare provider cuts with cuts to other key support programs.
SEPTEMBER: Disaster Relief
The debt limit fight was a political disaster, and an embarrassment for Dems who found themselves outmaneuvered throughout. But it also marked the point at which they adopted a new, more confrontational strategy with the GOP. That manifested itself in a small skirmish over funding the government in the new fiscal year that began in October. Republicans attempted to use the expiration of government funds at the end of the fiscal year as leverage to force Democrats to offset the cost of federal disaster relief with cuts to a successful hybrid vehicle incentive program. Indeed, House Republicans they tried to jam Senate Dems and skip town. In the end, Democrats refused to budge, FEMA managed to squeak by with the disaster relief funds it had, and a shutdown was again averted.
NOVEMBER: Super Committee
The debt limit fight led to the creation of the Super Committee, and a whole new fight over reducing federal deficits. But this fight was completely different. With the threat of a debt default off the table, Democrats drew a line: no cuts to entitlement benefits until Republicans agreed to break the stranglehold anti-tax conservatives have on their party. That break never really happened, and so the 12-member panel failed. As a result, major across the board cuts to defense, Medicare providers and other programs are set to kick in on January 1, 2013, unless Congress comes up with something better. That’s why the coming year and the presidential election are so high-stakes. They’re all about the nation’s priorities.
DECEMBER: Payroll Tax Cut
The GOP strategy of pushing negotiations to the brink of crisis finally caught up with them in the fight over extending the payroll tax cut, giving Democrats their most decisive victory of the year. Not only did Dems manage to turn the Republicans’ reluctance to renew the 2011 payroll tax cut into a huge political liability, they reset the consensus entirely. And in the process they left the House GOP conference — and the relationship between House and Senate Republicans — in shambles. In the end, Congress renewed the payroll tax cut for two months, and both parties have committed to extending it through the end of 2012. But Republicans will have to do so on Democrats’ terms. If they learned nothing from the last month, and try to pick another fight over payfors and unrelated riders, they risk a much more severe political embarrassment in the middle of primary season and, many observers have speculated, losing control of the House in 2013.
By: Brian Beutler, Talking Points Memo, December 28, 2011
Why Conservative Republicans Keep Rebelling Against John Boehner
The House GOP’s initial decision to reject the extension of the payroll tax cut was a bone-headed move. Indeed, it was impressively masochistic in the way it brazenly violated not only public opinion, but also the will of Republicans in the Senate, the vast majority of whom voted for the bill. But while Congressional Republicans were violating all manner of political common sense, that’s not to say that they weren’t following any sort of political logic at all. It just happens to be a logic of a particularly twisted sort.
One of the dominant factors motivating the decisions of rank-and-file right-wing House Republicans—and not just freshmen—is their lack of trust in Speaker John Boehner. They like him, but they just don’t believe he’s a dependable defender of their interests and beliefs. Those suspicions aren’t entirely groundless. Yes, Boehner has gone out of his way to cultivate the most conservative members of his caucus—every time he has hit an impasse, his first move is to the right, to accommodate them, not to the middle to replace some of them with willing Democrats. But the Speaker has also shown a penchant for compromise that right-wing House members can’t abide.
The first negotiation he conducted with President Obama was over the fiscal 2011 Continuing Resolution, which he billed as a sweeping reduction in spending with nearly $40 billion cut from the year’s collective appropriations. But it turned out in the cold light of day to be something else entirely, with only a fraction of a fraction of the cuts occurring in the remainder of that fiscal year. Next came the Speaker’s negotiations with Obama over a “grand bargain” on deficit reduction as the debt limit approached. No matter that Boehner extracted a range of concessions from the president, including cuts in discretionary spending and on Medicare—the package included a tax increase which conservative Congressmen deemed unacceptable. So when the Speaker appeared to again sign onto a deal laden with compromise—this time over the payroll tax cut that extended it for only two months, while including the main concession conservatives had demanded, action on the Keystone pipeline—those conservatives noisily rebelled.
Boehner’s trust gap is exacerbated by the fact that the rest of the GOP House leadership has been undermining his credibility as a negotiator. House Majority Leader Eric Cantor noisily dropped out of the debt limit negotiations the minute the tax issue was raised, saying it was above his pay grade and had to be carried out by the Speaker and the President—only to immediately disavow the agreement that Boehner and Obama reached. On the payroll tax negotiation, Boehner had no choice but to cave to aggrieved Tea Party members, lest he risk again having Cantor abandon him, leaving him exposed to right-wing attacks.
Ultimately, the root of the problem may lie in the stark lessons that the Republicans elected to Congress in 2010 seem to have drawn from an earlier cohort of conservative Congressmen—those that Newt Gingrich lead into the majority in 1994. Today’s Tea Partiers recognize that they share a similar governing philosophy with their forebears, but they believe almost uniformly that the Gingrichites sold out too quickly, blinking unnecessarily when the political heat got turned up. The conclusion many have drawn is that Gingrich made a huge mistake when he gave in after the disastrous government shutdown at the end of 1995—if Republicans had held out, lashed themselves to the collective mast and weathered the storm of public disapproval, Clinton would have caved and they would have succeeded at rolling back the welfare state.
There is, of course, zero evidence for this thesis, but that doesn’t matter. Some of this group will come back to DC in January believing that Boehner and sellouts like Mitch McConnell and John McCain have just repeated the error of 1995. That will make John Boehner’s task even more difficult as he moves to negotiate a new deal on the year-long extension of the payroll tax cut, and will compound his difficulties as he considers other key decisions, including the looming expiration of the Bush tax cuts. For Boehner, the nightmare will not only continue, but deepen.
By: Norman Ornstein, Roll Call December 24, 2011
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 