Another ad campaign

Senator Mitch McConnell battling Hussein over recess appointments is clearly designed to mislead the public:

President Barack Obama’s ability to jam through appointments during the congressional break depends on one big factor: What the definition of “recess” is.

Since the holidays, GOP congressional leaders have used a handful of senators and a procedural technicality to keep their chamber active, gaveling in and out of session for a few minutes every two to three days. The strategy: Play keep-away with Obama’s power to fill confirmation-level jobs in their absence, the only way he can avoid almost-certain Republican filibusters of his nominees.​

And this:

The current recess showdown is likely to center on Richard Cordray, Obama’s choice to lead the Consumer Financial Protection Bureau, a watchdog agency that is the centerpiece of Obama’s financial overhaul legislation — and a new office that pro-business Republicans want to weaken by barring his appointment.

When Senate Minority Leader Mitch McConnell (R-Ky.) sidetracked Cordray’s nomination three weeks ago, Obama warned him and his Senate colleagues that he would “not take any options off the table” to put Cordray in place.​

It’s a scam; a rigged fight where both fighters are in the tank. There is not a chance that the Senate will do anything to rein in presidential power; not Hussein or any other president. Cordray may never get the job, but recess appointments is not an issue that can diminish presidential power by one iota. The recess fight was put on the card in the campaign season to make it look like Senate Republicans are fighting the good fight. The lie is so obvious, I am surprised they are telling it.

Advice and Consent

Don’t get me wrong, I am in favor of blocking every nomination Hussein sends up for confirmation on general principal alone. Hussein is a Socialist/Communist; so how smart does McConnell have to be to figure out what kind of nominees he will send up? My question is: Why the hell is McConnell so concerned about Hussein’s consumer protection czar when he and his fellow Republicans fawned all over Hillary Clinton, Sonia Sotomayor, and Elena Kagan? just to name three that never should have been confirmed.

Clinton I can understand. As a Senator she was member of the club. She would have been confirmed if she swore under oath that she wanted the job so she could betray the country to the UNIC (United Nations/ International Community). Ditto Joe Biden if he is ever nominated. But Sotomayor and Kagan! What was McConnell thinking about when those two came up?

For Hussein’s part of the bargain he is playing along with McConnell to help restore some kind of a belief in the separation of powers; i.e., Congress and the presidency have an antagonistic relationship. A look at the stimulus packages, the bailouts, raising the debt ceiling, the current level of taxation, and so on is proof enough that both Houses of Congress and the presidency act as one.

And please do not tell me about compromise and bipartisan legislation until you can show some examples in the past 60 years of compromise and bipartisanship between the federal government and private sector Americans.

Consumer Financial Protection Bureau?

Give me a break. Since the LBJ years the entire federal government was redesigned to screw consumers. The result has been that everybody in Washington thinks they work for an advertising agency. Like every salesman that ever lived their job is selling a product for the most money. Big government is the product they sell. Their real job is not governing —— it is coordinating ad campaigns with the media in order to protect the agency. The phony fight between Hussein and McConnell is the agency’s latest advertising campaign.

Finally, if McConnell is for real he would be more concerned with eliminating executive orders than stopping one more of Hussein’s stooges from getting a recess appointment.

Here’s the great article in two parts for anyone who wants some background on recess appointments:

Obama and the definition of 'recess'
By: Joseph Williams
January 2, 2012 04:44 AM EST

President Barack Obama’s ability to jam through appointments during the congressional break depends on one big factor: What the definition of “recess” is.

Since the holidays, GOP congressional leaders have used a handful of senators and a procedural technicality to keep their chamber active, gaveling in and out of session for a few minutes every two to three days. The strategy: Play keep-away with Obama’s power to fill confirmation-level jobs in their absence, the only way he can avoid almost-certain Republican filibusters of his nominees.

But some Obama allies and government watchdog groups want him to flex his constitutional muscle and declare the Senate is in recess if it’s inactive for less than three days or idle for perhaps even less than a minute. The bold counter-move would upend a long-held but legally murky congressional tradition, ratchet up tensions between Obama and the GOP and trigger fresh partisan fighting over the Senate’s advise-and-consent role — tit-for-tat warfare that probably would extend to already contentious judicial nominations.

Catholic University law professor Victor Williams, writing in The Huffington Post last week, decried Republicans’ de facto “nullification” of government and urged Obama to puncture the “myth” that an official congressional recess lasts three days or more. In a memo released Thursday, the liberal activist group People For the American Way declared the standoff “a chance [for Obama] to engage in a fight he can so obviously win.”

Ian Millhiser, a legal policy analyst at the left-leaning Center for American Progress, said the GOP’s continuous-session tactic “defies the rule of law” by blocking nominees. And liberal blogger Jonathan Bernstein declared in The Washington Post that no less than “presidential influence over the executive branch” is at stake.

“The American public has had enough,” Marge Baker, PFAW’s executive vice president for policy and programs, told POLITICO. “The level of obstruction he’s faced since he’s been in office — he’s been extraordinarily patient, far more than we would have wanted” since some vacancies, like those on the National Labor Relations Board, have impeded the function of government. “There’s a strong feeling on the part of a lot of people that it’s time to get the business of this country done,” she said.

The current recess showdown is likely to center on Richard Cordray, Obama’s choice to lead the Consumer Financial Protection Bureau, a watchdog agency that is the centerpiece of Obama’s financial overhaul legislation — and a new office that pro-business Republicans want to weaken by barring his appointment.

When Senate Minority Leader Mitch McConnell (R-Ky.) sidetracked Cordray’s nomination three weeks ago, Obama warned him and his Senate colleagues that he would “not take any options off the table” to put Cordray in place.

“We are not going to publicly speculate about recess appointments,” administration spokesman Eric Schultz told POLITICO in an email. Senate Republicans, he added, “have not been shy about their determination to block the president’s nominees and policy priorities. It is becoming more and more apparent that Republican obstructionism is an overtly political maneuver to thwart the president’s agenda.”

Republicans argue that Obama can’t unilaterally change the bipartisan understanding that a Senate recess lasts longer than three days — a position that Senate Democrats and even an Obama Justice Department official, former Acting Solicitor General Neal Katyal, seemed to accept.

A top GOP aide said Thursday that the Senate would continue to use procedural maneuvers to remain in session for the next three weeks.

“As he did for the entire last year of the Bush administration, [Senate Majority Leader Harry Reid] did not adjourn the Senate this month, so we are not in recess,” said a senior aide to Republican leadership, who spoke on background because the matter is politically volatile. “We will have pro forma sessions through Jan. 23, when the Senate resumes regular meetings. Since we are not in recess, there [can be] no recess appointments.”

The nominations — which also include selections for long-vacant federal judgeships, empty seats on the NLRB and Obama’s choice to lead the obscure federal Office of Procurement — are important, Schultz said, adding that the nominees “are exceptionally well-qualified, and we will push for their confirmations.”

Though Republicans are using the gavel-in, gavel-out tactic to stymie Obama, Senate Democrats deployed it quite effectively against George W. Bush when they held power during the last year of his presidency. In a report released last month, the nonpartisan Congressional Research Service reported that Bush “made no recess appointments between [Democrats’] initial pro forma sessions in November 2007 and the end of his presidency.”

 

PART TWO:

Yet the Constitution doesn’t define the length of a recess, and “over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist,” the CRS report said. In 1993, the report found, a Clinton-era Justice Department brief implied that the president “may make a recess appointment during a recess of more than three days.”

That establishes the precedent, Republicans say. They point to a statement Katyal made in 2010 during Supreme Court arguments in a case that touched on unfilled vacancies on the NLRB. Asked by Chief Justice John Roberts why the president could not bring the board to full strength during a Senate recess, Katyal replied, “I think our office has opined the recess has to be longer than three days.”

Just before Christmas, all 47 Senate Republicans signed a letter to Obama calling on him to refrain from recess appointments for the good of legislative branch-executive branch relations. Ignoring the warning, they wrote, “would, at the very least, set a dangerous precedent that would most certainly be exploited in future cases” involving Senate confirmation votes and “could needlessly provoke a constitutional conflict between the Senate and the White House.”

To underscore the point, McConnell sidetracked a series of noncontroversial nominees awaiting confirmation votes last month and offered Obama a deal: If you promise not to make recess appointments, I’ll allow those nominees to be approved.

“We are ready and willing to move forward, by consent, with a package of nominations to positions in both the executive and judicial branches,” McConnell said on the Senate floor. “Just as soon as I receive confirmation from the administration that it will respect practice and precedent on recess appointments, we can get these people confirmed.”

Obama rejected the deal.

Michael Gerhardt, a University of North Carolina law professor, said the president has much to gain, little to lose and is probably justified if he chooses to fight. The Constitution, Gerhardt said, isn’t specific about recesses; the existing vacancies are impeding important government functions; and the GOP’s threat to slow things down further is moot because “there’s [already] obstruction all over the place.”

Obama’s political adversaries “are already looking for ways to constrain his initiative and his nominations. Anything he does will be used against him,” said Gerhardt, who wrote a brief analyzing the situation for the left-leaning American Constitution Society. “I think in a way, this ought to liberate him to do the right thing as he sees it.”

Though Democrats hold the majority in the Senate, Congress doesn’t officially adjourn unless the Senate and the GOP-controlled House pass matching resolutions agreeing to do so, according to the CRS report. On May 25, weeks before the summer break, the report said, 20 Senate Republicans urged House Speaker John Boehner (R-Ohio) “to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president’s term,” pointing to Democrats’ use of the tactic against Bush.

Boehner, backed by Majority Whip Eric Cantor (R-Va.) and 78 GOP House members, agreed. By June, the Republicans’ continuous-session strategy was on.

While the White House won’t telegraph its counter-strategy, the push for Obama to exploit the crack in the GOP’s plan continues, particularly among liberal bloggers and left-leaning publications like Daily Kos and Talking Points Memo. Editorial boards of the Cleveland Plain Dealer in Ohio — Cordray’s home state and a key 2012 battleground — and The Washington Post, a sometimes White House antagonist, have called on the president to use his power for recess appointments.

Several analysts and observers, including HuffPo’s Jennifer Bendery, speculated that Obama could make his move as soon as Jan. 3 or use the time between the Senate’s mandatory end of the first half of the 112th session and the beginning of the second half on Jan. 23 — a theoretical window of as little as a minute — to appoint Cordray and perhaps several other stalled nominees.

Baker said there’s ample precedent for it: In 1948, she said, President Harry Truman pushed through recess appointments in the day or so between congressional sessions, and President Theodore Roosevelt filled more than 160 vacancies when Congress took a break that lasted “a little less than an hour.”

Obama, for his part, has repeatedly suggested he’ll go to the mat for Cordray and has dialed up public pressure on Republicans, signaling his willingness to fight.

During a surprise Dec. 8 White House press conference, Obama declared it makes “absolutely no sense” for the GOP to block the nomination and blamed Republicans for failing to protect consumers in a down economy. “Everybody says [Cordray] is highly qualified … a bipartisan individual who looks out for the public interest. This individual’s job is to make sure people are protected” from the financial abuses that triggered the economic meltdown.

“I want to send a message to the Senate: We are not giving up on this. We are going to keep going at it,” the president added. “We are not going to allow politics as usual on Capitol Hill to stand in the way of American consumers being protected from unscrupulous financial operators.”

http://www.politico.com/news/stories/0112/70989.html

 

If the recess appointment fight is for real it could be the start of a long-awaited move where Congress finally begins to rein in presidential power. The next step is to to rein in judges who act as though the Constitution does not exist.

Obama defies Congress with ‘recess’ picks
Nominations could provoke constitutional fight
By Stephen Dinan and Susan Crabtree
The Washington Times
Wednesday, January 4, 2012

President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau and three new members to the National Labor Relations Board — moves Republican lawmakers said amounted to an unconstitutional power grab.

The president acted just a day after the Senate held a session — breaking with at least three different precedents that said the Senate must be in recess for at least three days for the president to exercise his appointment power. Mr. Obama himself was part of two of those precedents, both during his time in the Senate and again in 2010 when one of his administration's top constitutional lawyers made the argument for the three-day waiting period to the Supreme Court.

Mr. Obama tapped former Ohio Attorney General Richard Cordray to head the CFPB, and named three others to the labor board — all of which had been stymied by congressional Republicans who said Mr. Obama is accruing too much power to himself through those two agencies.

In strikingly sharp language, Republicans said the Senate considers itself still in session for the express purpose of blocking recess appointments, and the move threatened to become a declaration of war against Congress.

“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people," said Senate Minority Leader Mitch McConnell, Kentucky Republican.
GOP House Speaker John A. Boehner called the move "an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department."

"The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution," the Ohio Republican said in a statement.

The White House, though, argues Republican senators have been stonewalling his nominees for so long that Mr. Obama had no choice but to circumvent them.

The president introduced Mr. Cordray during a trip to Ohio Wednesday, telling a supportive crowd that the Senate Republicans' ongoing blockade of his nomination "inexcusable."

"I refuse to take 'No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them," Mr. Obama said.

CPFB supporters has said the lack of a top executive has blocked the fledgling agency from taking on a number of tasks in its mandate to police the financial sector and protect consumers from fraud. Mr. Cordray was accompanying the president on the trip, and briefly spoke to reporters.

He said he would begin work immediately, adding: "We're going to begin working to expand our program to non-banks, which is an area we haven't been able to touch until now."

The Constitution gives the president the power to make appointments when the Senate is not in session and able to confirm them. Traditionally, that has been understood to mean when the Senate has adjourned for a recess longer than 10 days, and a Clinton administration legal opinion said a recess must be at least three days.

Mr. Obama's own top constitutional lawyers affirmed that view in 2010 in another case involving recess appointments. Asked what the standard was for making recess appointments, then-Deputy Solicitor General Neal Katyal told the justices the administration agreed with the three-day rule.

"The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than 3 days," Mr. Katyal said.
Mr. Katyal, who is now a professor at Georgetown University, did not immediately respond to an email seeking comment on the president's move.

The three-day rule was also the precedent Mr. Obama and his fellow Senate Democrats followed in 2007 and 2008 when they were trying to block then-President George W. Bush from making recess appointments.

"I am keeping the Senate in pro forma to prevent recess appointments until we get this process back on track," Senate Majority Leader Harry Reid, Nevada Democrat, said on Nov. 16, 2007, as he announced his strategy of having the Senate convene twice a week for pro forma sessions.

On Wednesday, though, Mr. Reid reversed course and said he backed the president's move.

"I support President Obama’s decision to make sure that in these tough economic times, middle-class families in Nevada and across the country will have the advocate they deserve to fight on their behalf against the reckless practices that denied so many their economic security," he said.

CPFB opponents inside and outside of Congress say the agency, whose budget is not approved by Congress, will not be subject to legislative oversight and they have demanded changes in President Obama's financial regulatory overhaul law before they say they will allow a vote on a nominee to head the agency.

Senate Republicans last month filibustered Mr. Cordray's nomination, leaving him 7 shy of the 60 votes needed to get a final confirmation vote. Democrats and Republicans have increasingly turned to filibusters to block a president's nominees when they are in the majority.

Consumer and labor groups also hailed Mr. Obama's moves Wednesday.

Mr. Cordray's appointment "was long overdue and is essential to helping restore the frayed sense of confidence that Americans have in many financial institutions and consumer financial products," said Lisa Woll, head of the Forum for Sustainable and Responsible Investment.

James T. Callahan, general president of the International Union of Operating Engineers, said Republicans "have made a determined effort to cripple the NLRB and other government agencies by refusing to act on President Obama’s nominees, no matter how qualified. Leaving the NLRB without a quorum would penalize both labor and employers."

But by abrogating decades of understanding of the recess appointment power Mr. Obama threatened to spark a full legislative war with Congress.

"Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch," Mr. McConnell said.

Part of the confusion is that in the Constitution the word "session" has different meanings. For example, each two-year Congress is divided into two sessions.

During Tuesday's pro forma meeting, the Senate officially gaveled out the first sessionn of the 112th Congress and gaveled in the second session.

And there is a precedent for making a recess appointment then. In 1903 President Theodore Roosevelt used the instant one session was gaveled out and another was gaveled in to make a series of appointments. That is known as an "inter-session" appointment.

But Mr. Obama did not follow that route, instead choosing to make what scholars call an "intra-session" appointment, where the Constitution is far more vague.

http://www.washingtontimes.com/news/2012/jan/4/obama-unprecedented-recess-appointment/