freeman2 wrote:Obama is contending that holding these pro forma sesssions of a few minutes a day is a sham and the Senate is not really in session. He has a reasonsed position here.

This is really sad. You are a lawyer. Look at your rationale: Obama's feelings trump precedent and the Constitution. It is interesting to note that before he was President he "felt" exactly the opposite.

How about Senate Republicans attempting to prevent an executive agency from operating by refusing to approve any nominee? Republicans tried to prevent an executive agency from functioning--I think that is an inappropriate exercise of congressional power.

You "think?" Again, you are an attorney. Does the Constitution provide for three equal and independent branches of government? If so, is Congress prohibited from attempting to limit the actions of the Executive branch? Do they not have the power of the purse, for example? Does the Senate not have the right to confirm or reject appointments?

Again, this is not about recess appointments per se. It is about the President's right to declare when the Senate is/is not in session. Please direct me to the section of the Constitution in which he is given that power. As I've laid out, the House has the right to not permit the Senate to go into recess. It exercised that right and the President negated it. What Constitutional authority does he have to abrogate the Constitutional authority of the House?

What I think is sad is supporting Republicans in preventing an agency that will prevent consumers from being defrauded.

Wow.

Are there no other agencies to do this? In that event, I would like to suggest the following cuts: the SEC; about half the Justice Department; the Department of Consumer Affairs in just about every State. I'm sure others could add to the list.

This is another bureaucracy created in a knee-jerk reaction to the financial meltdown. It is unaccountable to anyone and will wield, ultimately, the same kind of ridiculous authority the EPA has--except it is funded by a mechanism that shields it from Congressional oversight. This is Frankenstein's monster. The only reason liberals defend it is because liberals created it.

Even if Obama acted wrongly in filling these recess appointments, which I do not concede, he did not act arbitrarily (he has a reasonable legal position here) . . . .

I'd hate to see your definition of "arbitrarily." Did he meet with the GOP to discuss their concerns about the new agency? Did he do anything other than publicly castigate them and prophesy the Apocalypse if he did not act?

Btw, he did act arbitrarily. The frosting on the cake was his appointment of the three NLRB members without even giving the Congress a chance to conduct hearings or do anything at all, since they were submitted only in the middle of December.

and of course (as Vince points out) this debate in no way compares to the use of executive power with regard to the Patriot Act, torture, failing to comply with FISA, deterntion of U.S. and foreign nationals indefinitely without evidence, use of drones as an assassination tool, etc, etc.

Which only goes to show that you both can compare atom bombs with apples.

freeman2 wrote: Republicans tried to prevent an executive agency from functioning--I think that is an inappropriate exercise of congressional power.

I disagree. It is the Senate's Constitutional responsiblity to provide advice and consent on the heads of Executive departments. If the President provides a nominee that is unacceptable is it not an appropriate exercise of their power to block that nominee?

Had the Senate been willing to put the guy up for a vote? Has there been any discussion if this is an appropriate use of "advice and consent".

From what I understand, Republicans did not object to the nominee personally; they did not want him to be approved because they objected to the agency. What if the Senate decided it did not like the Supreme Court and refused to approve any Supreme Court nominee? I think Senate Republicans went beyond their consent role and infringed on executive power and Obama acted appropriately and Constitutionally in response.

I am not the least bit sorry that Obama has played hardball with the Senate Republicans on this issue. It is about time.

freeman2 wrote:From what I understand, Republicans did not object to the nominee personally; they did not want him to be approved because they objected to the agency.

As I said, they thought the agency lacks oversight. Lindsey Graham:

“This consumer bureau they want to pass is (put) under the Federal Reserve; no appropriation oversight, no board. It is something out of the Stalinist Era,” he said, “The reasons Republicans don’t want to vote for it is that we want a board not one person making all of the regulatory decisions. There is no oversight under this person. He gets a check from the Federal Reserve. We want him under the Congress so we can oversee the overseer. ”

In other words, this agency is funded by a mechanism via the Federal Reserve and is unaccountable to anyone. Republicans wanted to negotiate this. The "post-partisan" President didn't.

What if the Senate decided it did not like the Supreme Court and refused to approve any Supreme Court nominee?

Wow. Again, you are a lawyer, right?

So, what's the difference between an agency created by an act of Congress and the Supreme Court, enshrined in the Constitution? That is not an apt comparison, to be polite.

I think Senate Republicans went beyond their consent role and infringed on executive power and Obama acted appropriately and Constitutionally in response.

I find this bit of leaping non-logic frightening. No negotiations, no appeal to the Supreme Court, no keeping with precedent (the last and only time this was done was 1903), and that's okay with you?

I am not the least bit sorry that Obama has played hardball with the Senate Republicans on this issue. It is about time.

So much for the rule of law.

Stewart nailed it, and he's funnier than all of us put together. I hope this site plays internationally, because John Oliver's bit on this one is great.

http://videocafe.crooksandliars.com/heather/jon-stewart-slams-republicans-their-outrag

If the Congress disagrees with the consumer agency they can pass a bill getting rid of it. Until then, they don't get to negotiate with the president on how it is be run. If they think the agency is unconstitutional, they can try challenging it on that basis.

As for the crack about my being a lawyer, I see nothing wrong with the example of how the Senate could abuse its advise and consent role. Here, Senate Republicans specifically said they will not approve a head of the agency no matter who it is. You are an expert on constitutional law Steve, how does the "advise and consent" role differ in approving members of executive agencies vs. Supreme Court nominees? In either case, at some point, there is an infringement on the power of another branch if the Senate refuses to act at all on appointments.

geojanes wrote:Stewart nailed it, and he's funnier than all of us put together. I hope this site plays internationally, because John Oliver's bit on this one is great.

He's funny, but not accurate.

Again, these tactics were exactly what Democrats used against Bush. He is ignoring the Constitution.

Now, Oliver was funny! And, he nails the Constitutional aspect too.

freeman2 wrote:If the Congress disagrees with the consumer agency they can pass a bill getting rid of it. Until then, they don't get to negotiate with the president on how it is be run. If they think the agency is unconstitutional, they can try challenging it on that basis.

Nice shift of goal posts. I didn't say they thought it was "unconstitutional." They think it is unaccountable. And, that's not a guess, it's a fact. If you want to dispute that, then please tell me what the checks are on it?

As for the crack about my being a lawyer, I see nothing wrong with the example of how the Senate could abuse its advise and consent role.

It's not a crack. You are applauding the President ignoring the rule of law. As an attorney, you ought to find that troubling.

Isn't there a remedy when one branch of the government reaches too far? Is that remedy for an opposing branch to go ever further? What is the difference between what Obama did and what a dictator would do?

NB: I am not saying he is a dictator. I am saying ignoring the rule of law and proclaiming it the right thing to do ("We Can't Wait") is pretty much what happens in banana republics.

Here, Senate Republicans specifically said they will not approve a head of the agency no matter who it is.

They said they had nothing against Cordray.

Here's the problem: because of the way this agency is financed, this is their only means of shaping it. Once it is up and running, it is virtually its own arm of government. Do we really want another Federal Reserve, IRS, or EPA? I don't.

You are an expert on constitutional law Steve, how does the "advise and consent" role differ in approving members of executive agencies vs. Supreme Court nominees?

Again, nice attempt to shift the field of play. The two are entirely different. The USSC is mandated by the Constitution. The Consumer whatever bureau is not.

In either case, at some point, there is an infringement on the power of another branch if the Senate refuses to act at all on appointments.

And, is there no mechanism for deciding between the Executive and Legislative branches? Is there any kind of "tiebreaker?"

Let me put it this way: which is more in keeping with the Constitution:

1. President Obama determining that the Senate is not in session (even though the House did not permit the Senate to go into recess) and pushing through recess appointments.

OR

2. President Obama appealing to the Supreme Court?

Given that the President's own lawyers had previously argued against the position he is now taking, isn't this just politics AND a slap at the Constitution?

Furthermore, as I posted earlier, since the tax package was passed while the Senate was in pro forma session, is that negated?

Obama wants pro forma to mean the Senate is doing business AND it is not. It can't be both.

Ray Jay wrote:Had the Senate been willing to put the guy up for a vote? Has there been any discussion if this is an appropriate use of "advice and consent".

I'm facing a similar problem at work sometimes. In order to proceed with a project, certain documents need to be reviewed and approved by key stakeholders.

So, if they don't bother replying, they don't give their feedback (advice) and don't give approval (consent). But they are the same people who have already agreed that the project is important and needs to go ahead (voted to establish it).

At some point, someone needs to stop the games and take a decision. I can quite understand (as I say, having spent weeks arguing with people that they need to at least give the feedback if they don't want to approve) the desire to press on. Sometimes we do work 'at risk' and work outside governance because otherwise we'd never get things done on time.

Of course, I'm talking about a company that is competing in a market, having to abide by regulations and trying to launch new products. Governments probably have a different standard. But it seems that the outrage is disproportionate to the crime, and that it's ignoring the fact that between them the houses of Congress are basically shirking their responsibilities in the spirit of the Constitution.

They don't like the Bureau, but won't pass a bill to remove/reform/add oversight to it. So they decide to make it clear that they will abdicate the job to 'advise and consent' on who runs it - whoever is put forward. And they will use jiggery-pokery and legalese to work within the letter of the Constitution to get their way without having to take the responsibility to reverse the decision that Congress itself made in 2010.

I'm trying to work out if the House and Senate could effectively do this in perpetuity - just cycle round pro forma sessions never assenting to a full recess for the other and never doing anything. The Constitution seems to allow it, but do you really think it was part of the Founders' intent to have 535 people working hard to do nothing? Looks like a bug in the Constitution (there have been several, such as the succession rules that required an Amendment). Fix it? Nah. Praise it!

Oh, and George, those clips played fine. John Oliver was definitely on fine form.

Looking at the Steven G Bradbury precedent, the guy was never appointed, but was actually de facto the head of the OLC, so while GWB could not get the appointment ratified, it was less of an issue. Because the agency already existed and the guy who he wanted in charge... was in charge.

So I guess GWB didn't have a need to take such an action, as the OLC would not have been inoperable without it. So his role as Executive was in place.

Does it excuse Obama. Frankly I don't care. It's a very silly argument, as far as I can see. Executive wants to Execute, Legislature doesn't want to legislate. Rules favour the latter over the former, even if that's not the intent of the rulebook.

I do wonder though, do Republicans really think that getting excited over a technical (alleged) breach of the Constitution is going to convince ordinary people to vote for them? And given that they spens a lot of time attacking Obama as a do-nothing President who's not trying to solve the nation's problems, is it politic to then condemn him for acting while Republicans in Congress do all they can to block him?

It's almost as if they want to undermine one of their own talking points.

Interesting twist:

But an obscure paragraph in the 2010 law that created the bureau may keep Cordray in check unless the Senate formally approves of his hiring — an approval Obama sought to circumvent by making him a so-called “recess” appointment.

Section 1066 of the law says many of the bureau’s new powers are to be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.”

That legal technicality ensures that Cordray’s power will be legally crippled, said Roger Pilon, the founder and director of the Cato Institute’s Center for Constitutional Studies.

“I don’t think he would have the authority to act” because he still hasn’t been confirmed by the Senate, Pilon said. “As soon as he did [try to impose a decision], it would be challenged [in court] by one of the people or entities that is affected.”

I really hope this goes to court. It's not just this appointment. It really calls into question the balance of power in the Federal government. In my opinion, the President (office, not the man there at the moment) has more than enough power as it stands. This is a bridge too far and he should be called on it.

Owen put it better than I could, but it does seem nervy for Senate Republicans to hold pro forma sessions (of questionable Constutional validiity), refuse to approve any head of the new agency (again of dubious Constiutional validity) and then complain when Obama responds in kind. Don't want Obama to push the limits of Constitutional power--don't do it yourself!

As I have told my children, two wrongs do not make a right. I have been quite frustrated with the Legislative Branch for a while for not holding the executive to the correct standard. Both sides are guilty of this.

No budget out of the Legislative. (The HOR sent one to the Senate, but it didn't come for a vote)
Pro-Forma sessions
Holding judges and appointments "hostage"

Steve has been right in his listing of the Presidents "sidesteps" of law. I will not re-list them...

This pretty much plays into one of Obama's obvious electoral strategies .... running against a do nothing congress.

On the approval / disapproval rating he's miles ahead of congress in general and even more ahead of republicans in congress. (He's still the most popular politician in the US, federal government/legislature. Unless you count Hillary.)
This is a really tawdry confrontation of legislative maneuvering that has little to do with constitutionality or effective governance. Ordinary people look at the congress and say, you voted the formation of this department but won't allow the Presidents nominee to stand for confirmation? The contradiction stands clearer than any nuanced rationale for the charade of pro-forma sessions. As a symbol, Obama would like nothing more than to use the Cspan broadcasts of those pro-forma sessions in his campaign.