With His "Recess Appointment," President Obama Steps Up to Fight the Essential Battle

by: AndySchmooklerforCongress

Tue Jan 10, 2012 at 12:28:03 PM EST

Fights between Congress and the president over presidential appointments have gone on for decades. But Senate Republicans have taken the fight to a new level by using the power to deny appointments to require changes in the laws. The Dodd-Frank financial reform established the C.F.R.B., but Wall Street hates it, and Republicans openly vowed not to confirm any director unless Obama agreed to weaken the law.

This is an entirely new use of congressional power to block appointments. The normally mild-mannered James Fallows has called this "nullification," and Republicans have begun using it to paralyze large swaths of the government. The normal presidential recourse against hardened opposition to an executive branch nominee is to make the appointment when Congress is out of session, but Republicans closed off that avenue as well, by holding pro forma sessions year-round. If it held up, this would give Congress enormous power over the president - allowing it to unilaterally halt any agency it likes in return for any demand at all. They have likewise refused to confirm any directors at all to the National Labor Relations Board, denying the agency a quorum and essentially halting the enforcement of federal labor law.

So Obama tried the audacious and legally indeterminate move of simply declaring the pro-forma session a sham, insisting Congress really was on recess, and appointing his man. If it stands up to the likely legal challenge - the U.S. Chamber of Commerce is threatening to sue - Obama will have taken a dangerous new weapon out of Congress's hands. Obama's maneuver may stand, or it may lead to a further reform of the confirmation process. But allowing Congress to functionally eliminate full-passed laws simply by denying the president any appointments to carry them out is a dangerous precedent that Obama would be derelict if he allowed to stand.

Andy Schmookler comments are below the "fold."

The essence of conservatism might be said to be respect for tradition, for custom, for the established order, for the norms of one's culture handed down through the generations.

So what do today's Republicans do? They trample on all those things.

The established political norm in American politics with respect to the debt ceiling has been to raise it when necessary, not to play politics with it, and certainly NOT TO USE IT FOR THE PURPOSES OF EXTORTION.

The established political norm in American politics has been for an opposition party to accept its minority status, when that is what the American electorate has consigned them to, and to work for the good of the nation. It has NOT been to try to make the president --who happens to be from the other party-- FAIL at a time of national crisis.

No genuine conservatives should think for a moment that these Republicans are upholding conservative values.

And that wanton quality --that pervasive disrespect for tradition, that willingness to damage the structures built up over the generations-- is identified here in various phrases found in Chait's passage.

The Republicans have "taken the fight to a new level," making an "entirely new use of congressional power," and establishing "a dangerous precedent."

That is not what real conservatives do.

It is clear what rules these Republicans, instead of conservative principles. It is the lust for power.

When this Republican Party possessed the presidency, under George W. Bush, it sought to arrogate all power to itself, trampling on traditional norms as well as the Constitution to do it: it made an "entirely new use" of signing statements, unsupported by the powers granted by the Constitution; it claimed unprecedented powers for the presidency, taking the "commander in chief" role to "a new level"; and it created "dangerous precedents" in its disregard of habeus corpus, its use of the Justice Department for partisan political purposes, its refusal to cooperate with legitimate congressional oversight.....

And now, when it is the Democrats who have the White House, the Republicans are doing the very same thing, albeit in the opposite direction. Instead of usurping power for the presidency, they are working to seize power from it. It is the opposite in that respect. But it is the very same thing at a more fundamental level: "All power for ourselves, regardless of the costs to the democratic, constitutional government established by our Founders."

No real conservative should be willing for a moment to support a party that behaves like this.

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Andy Schmookler is running for Congress in the 6th Congressional District of Virginia, challenging the incumbent Congressman, Bob Goodlatte.  An award-winning author, political commentator, radio talk-show host, and teacher, Andy moved with his family to Shenandoah County in 1992.  He is a graduate of Harvard University and holds a PhD from the University of California at Berkeley.  

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To learn more about Andy, please go to his website. You may also follow Andy on Facebook and on Twitter.