Silicon Investor (SI) -- The First Internet Community

STOCKTALK

We've detected that you're using an ad content blocking browser plug-in or feature. Ads provide a critical source of revenue to the continued operation of Silicon Investor. We ask that you disable ad blocking while on Silicon Investor in the best interests of our community. If you are not using an ad blocker but are still receiving this message, make sure your browser's tracking protection is set to the 'standard' level.

Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: JohnM who wrote (178587)	1/4/2012 2:28:12 PM
From: Sam	Respond to of 541658

Benen weighs in on the Cordray recess appointment with his usual perspicacity. McConnell’s concern for ‘precedent’ President Obama, to the delight of progressives everywhere, will appoint Richard Cordray to the Consumer Financial Protection Bureau through a recess appointment. Congressional Republicans are predictably apoplectic. Here’s a statement issued by Senate Minority Leader Mitch McConnell (R-Ky.), which I’ve decided to annotate: “Although the Senate is not in recess [1], President Obama, in an unprecedented move [2], has arrogantly circumvented the American people [3] by ‘recess’ appointing Richard Cordray as director of the new CFPB. This recess appointment represents 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 [4].” This is probably going to be a pretty important dispute, so let’s take McConnell’s arguments one at a time. [1] The definition of “recess” has become a little more malleable than it probably should be. McConnell would have us believe pro-forma sessions tie the White House’s hands, but there’s evidence that McConnell doesn’t really believe his own argument. His own spokesperson has conceded that these sessions are “ purely political” and aren’t to be taken seriously, and just two weeks ago, McConnell himself seemed to suggest recess appointments are possible during Congress’ winter break. Indeed, the Minority Leader may find it interesting that George W. Bush’s own legal team concluded that the Senate cannot use sham pro-forma sessions to prevent the president from exercising a constitutional power. The non-partisan Congressional Research Service produced a report on this in March and reached a similar conclusion. [2] This one is largely true, but the argument lacks relevant details. Obama’s recess appointment arguably is unprecedented, but that’s not the president’s fault; it’s McConnell’s. After all, it was the Senate Republican minority that, for the first time in American history, said it would not allow a vote on a qualified nominee solely because the minority does not like the existence of the agency the nominee was selected to lead. Obama is breaking with precedent only because Mitch McConnell is breaking with precedent — if Cordray were given a vote, the way the Senate is supposed to function, the recess appointment wouldn’t be necessary. And if McConnell is concerned with “precedent,” he wouldn’t be using a nullification strategy. [3] The “American people” are not being circumvented. In reality, the American people elected a Democratic majority to the Senate for the three consecutive election cycles; the American people elected the lawmakers who created the CFPB; and the American people elected President Obama to nominate officials to head the various agencies. The American people support the CFPB and reject McConnell’s obstructionist tactics. The only people “arrogantly circumventing” the “American people” are Senate Republicans. [4] There’s actually ample precedent for presidents making all kinds of recess appointments that would probably bring tears to McConnell’s eyes. In one instance, Teddy Roosevelt once made recess appointments “ during an intersession recess of less than one day.” McConnell probably isn’t principally concerned about accuracy here, but his argument clearly needs some work.

To: JohnM who wrote (178587)	1/4/2012 2:30:02 PM
From: JohnM	Read Replies (2) \| Respond to of 541658

I'm still withholding judgment on the wisdom of the timing of the Cordray appointment but I agree with this Ezra Klein piece about governing by loophole. We continue to wander down the rabbit hole. ----------------------------------------------- Government by loophole Posted by Ezra Klein at 01:55 PM ET, 01/04/2012 Is President Obama setting a worrying precedent by overruling Congress’s intention to remain in pro forma session to recess appoint consumer-finance chief Richard Cordray? Absolutely. Liberals would be hitting the roof if George W. Bush did this. Has Congress been creating a worrying precedent by blocking record numbers of appointments and holding continuous pro forma sessions in order to deny the president his traditional power to make recess appointments? Without doubt. You can get the gory procedural details from Brad Plumer, but I would observe that this is a further descent into government by loophole: One side figures out how to twist the rules to their advantage, the other side twists a different rule in response, and soon enough, you have a war of procedural interpretations rather than a vote on the floor of both chambers of Congress. You see it with the filibuster. Republicans mounted more filibusters between 2009 and 2011 then there were in the 1950s, 1960s and 1970s combined. In response, Democrats finished health-care reform through the filibuster-proof budget reconciliation process. Republicans called the maneuver unprecedented. Democrats called the filibusters unprecedented. Minority loophole? Meet majority loophole. And the outcome was a worse bill that took more time to pass. Now you’re seeing it with appointments: Republicans block a record number of appointments and enter continuous pro forma sessions in order to deny Obama recess appointments. The numbers tell the tale: Ronald Reagan made 243 recess appointments. George W. Bush made 171. So far, Obama has made 29. In response, the Obama administration breaks from precedent and declares pro forma sessions to be no obstacle to recess appointments. Minority loophole? Meet majority loophole. This is no way to govern. Bills should pass either by 60 votes or 51 votes, but not by both. The president should be able to unilaterally make appointments or be unable to unilaterally make appointments, but not both. As we’ve trended towards more loophole-driven minority obstruction in the Senate, the majority has tried to assert its will through loopholes. But the result is an increasingly unpredictable and opaque political system that doesn’t work well for anybody. washingtonpost.com