Tuesday, January 14, 2014

Recess Appointments and Partisan Obstructionism: Two Sides of the Same Coin

Courtsby Nomad

This week the Supreme Court is reviewing a lower court's decision which declared unconstitutional President Obama's use of recess appointments.

The ramifications of a Supreme Court decision upholding the lower decision could be disastrous for Obama. Why? Should the Senate fall into the hands of the obstructionist Republicans, Obama's chances of getting any nominations may be impossible. How the justices decide in this case could play a crucial factor not only in the remainder of this administration but in future presidencies.

Recess Appointments
Like a lot of cases before the Supreme Court, the actual importance and impact are buried beneath mounds of mundane details. Such is the case of the constitutionality of recess appointments. For instance, strictly speaking, the case is straightforward. It revolves around the president's ability to make appointments while the Senate is at recess. What are the limits to this presidential power according to the constitution? 

There is no reason question whether the US constitution gives Presidents the right to fill a vacant position if the Senate is in recess. Wikipedia describes recess appointments this way:
The U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in recess the President may act alone by making a recess appointment to fill "Vacancies that may happen during the Recess of the Senate."   
In a happier world in which all of the branches of government work together and make nice to one another, this could be seen as merely a way to smooth the confirmation process along. But of course, that's not the world in which we live and Washington has never a happy place for long. 
Today the use of recess appointments by the president is generally seen as a means to overcome a congressional delays or outright blockage of nominees. Even then, the Constitution requires Senate approval of any recess appointment,  by the end of the next session of Congress. 
This long-simmering dispute between  the branches goes way back, as we shall see, but came to a head back in January 2013. That's when a federal court ruled that President Barack Obama had violated the U.S. Constitution when he used recess appointments to fill name three members to the five-member National Labor Relations Board. That decision was challenged by the Obama administration, bringing us where we are today. 

The administration obviously felt- and not without reason- that it was well within its rights, given the unprecedented delays in confirming presidential appointments, Despite the uproar from the Republicans, Obama had not done anything that any other president had done. In fact, the basis of the earlier federal court ruling was deceptively simple: it ruled that the Senate was not formally adjourned for the year, therefore, the recess appointment was illegal and thus, the president had acted outside the law.

Upon announcing that decision in January, the Republicans were elated by their victory. Never one to miss an opportunity to grandstand, Kentucky Republican Senator Mitch McConnell, welcoming the lower court verdict, stated
"The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land.
Before champagne bottles could be uncorked. the Obama administration had launched an appeal  and the issue was pushed forward to the Supreme Court to support or reject that decision this week.

On the surface, it seems like a case of semantics. By redefining the term "recess", the court may (or may not) drastically limit the executive branch's ability to carry out its functions. The Republicans, on the other hand, see it as a pushback to presidential overreach.

Complications to the Ruling
There are a few obvious problems with the lower court's ruling that the Supreme Court will have to consider. For example, that decision does not take into account the unprecedented delays and obstructions to confirm presidential appointees. 

The Founding Fathers perhaps could never have imagined such a polarized political climate could ever exist. But exist it does. It positively thrives! After Obama took office in 2009, the Republican Senate minority not only obstructed nominees they found ideologically extreme but routinely delayed or blocked all votes. With the entry of the Tea Party into Congress, the very idea of what is and what is not ideological extreme has been turned on its head.

Many of the objections do seem to have a lot to do with extremism at all. According to an article in the New York Times:
Republicans have objected to the nomination of Gina McCarthy to lead the Environmental Protection Agency, citing what they said were her insufficient responses to their questions. They have also sought to block the labor secretary nominee, Thomas E. Perez, a lawyer in the Justice Department, on the grounds that he is too political.
Too political? Does that mean Perez was an extremist? Let's check.
Perez has many noteworthy accomplishments and most of them would make conservative blood boil. For example, Perez chaired the interagency Worker Exploitation Task Force, which oversaw a variety of initiatives designed to protect vulnerable workers. When he ran for office in his home state of Maryland, it was with   the endorsement of the AFL-CIO and   the support from other labor groups, He  supported legislation for protections against predatory lending by banks, among other abusive lending practices.
Is this too political or is it actually too liberal? Too political or too friendly to labor? Should a liberal president be mandated by the Senate to only have conservative-approved appointees?
In this case, then, who exactly is guilty of overreach, the president or the Senate?

And the Perez case is the proverbial tip of the iceberg. In each nomination,  there were different objections. But the objection is far different than obstruction.
Nominees at all levels of Washington’s bureaucracy — 117 of them in all, including cabinet secretaries, judges and members of obscure oversight boards — are facing delays. Just last week, the Senate confirmed David Medine, the president’s choice to lead the Privacy and Civil Liberties Oversight Board. The time between his nomination and confirmation was 510 days. Every Republican voted no.
Most political analysts would have once considered anything over 180 days to be considered a delay. How long does it take to examine a candidate and call a vote, after all?
To claim this is solely a matter of executive overreach or that member of Congress are upholding the Constitutional is simply untrue. It is rather a case of a political process coming to a dead stop.

Partisan Obstructionism or a Check on Executive Powers?
It is also important to clarify the differences between partisan obstruction or delays and genuine reservations for a particular candidate. Supporters of Obama would say that the repeated use of political gimmicks like filibusters have been used to prevent any progress- not merely the rejection of an appointee.  Another trick frequently used by the Senate during this presidency was noted in the New York Times article:
Republicans have resumed an effort to hold up many of the president’s choices, often by burying them in paperwork. One tactic that has become a favorite is submitting hundreds of written questions that the nominees are obliged to answer.
Only the most die-hard conservatives would say that the Congress has not resorted to extraordinary- Democrats would call them, underhanded- methods to delay confirmation, rejection or even a discussion of appointees.
 *   *   *   *
AS we have seen, the use of the recess appointment is nothing new and, despite the obstacles that the Senate has put in the confirmation process, President Obama is well below average. According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had only made 32 recess appointments. (He may have made more since then.)

Looking at those numbers, it's apparent that compared to Obama, President Reagan used recess appointments far more aggressively. Clearly, Congress did not formally adjourn 240 times.

From president to president, the reasons for the use of  recess appointment remains the same. It has been the first resort  to relieve Congressional confirmation constipation. To put it more elegantly, for the sheer expediency. 

The Republican Reversal
It has only been since Reagan's second term that recess appointments have come into play. So how did the problem begin? As one source explains:
Partisan obstruction and delay in the confirmation of lower court judges gained steam when Senate Democrats objected to several Reagan nominees, and ramped up during the presidencies of Republican George H.W. Bush and (especially) Democrat Bill Clinton and Republican George W. Bush. Under the latter, minority Democrats filibustered.
After Obama took office in 2009, the Republican Senate minority not only obstructed nominees they found ideologically extreme, but routinely delayed or blocked all votes.
Meaning, the process was shut down completely, permanently preventing the administration from filling posts. Recess appointments, the Obama administration discovered,  was the only means of filling the posts required for a functioning government. 

But here is the most awe-inspiring aspect.  
The conservative crusade against tyrannical executive overreach is a reversal from the Reagan days. At that time, conservatives  believed to their dying breaths in a robust executive branch. The stronger the better. Congress was the adversary and it was the duty of the president- indeed a sign of leadership- to use whatever means available to achieve his goals. Congress be damned. 
Meese Edwin

Under Reagan, the conservatives like Attorney General Edwin Meese III fought hard for the expansion of executive powers. In April 1986, he commissioned a report from the Justice Department  which laid out recommendations for restoring the power taken from the executive branch after Watergate and Vietnam, and adding new powers besides. 
But it gets even more perverse. 
According to the report, our concept of separation of powers providing “checks and balances” over excesses of presidential power are all wrong. Wrong, wrong, wrong. It's nothing more than an unconstitutional attempt by Congress to encroach on the rightful power of the executive, the report claimed. Moreover, the Meese report asserts that "none of the three branches may tread or encroach on the others’ area of responsibility and authority."

According to the report, the White House should exercise total and unchallenged control of the executive branch. In that light, Reagan's use of recess appointments is perfectly understandable. 
In response to this philosophy, the Democratic Congress felt it necessary to use whatever means to curb executive power. One way to do that was to lengthen the confirmation process. Congress, they said, would never become a rubber stamp for the executive branch. That view sparked a war between the different branches that has led to the ugly scene we have today. 

Ironically, today Meese is head of the Heritage Foundation which among other things, accuses Obama of executive overreach when it comes to education, the environment, and healthcare.
And if that doesn't make you giggle, then listen to this. In 2012, Meese said that the Obama administration’s “disdain for Congress” and its efforts to consolidate power within the executive branch through the use of “czars” makes it “as close to a monarchy as since the days of George III.”

The use of czars was yet another way to work around the Congressional roadblocks. Incidentally, once again, this has been standard practice until Obama became president. Here's a list of George Bush's czars. (I see a Faith Czar and a Bird Flu Czar and, say what, an Abstinence Czar?)

But the new and improved Meese went further:
“The way the executive branch of the government works is you have bureaucratic norms in which the various departments have their responsibilities,”
That's not what he thought during his careful Reagan years.
Presidential overreach, it seems, is a good thing but only when Republicans are in the driver's seat.
How Soon They Forget
Oddly enough, one doesn't have to go back so far in the past to see the hypocrisy of the conservatives. When Bush was president, the conservatives took a very different opinion on the subject of presidential overreach. Vice-president Dick Cheney was famous for his stand on the right of an unhindered executive branch.  The late Helen Thomas observed:
Vice President Dick Cheney reportedly has been disturbed over what he sees as the erosion of presidential powers since the Watergate scandal and has urged Bush to take a stronger stand against what Cheney sees as congressional intrusions into the executive branch.
The years following Watergate were the lowest point in terms of presidential powers. Congress was exerting its dominance over the executive branch and this, he said, had weakened the American government. Not to worry, It was all put to right during his-- pardon, Bush's presidency. Cheney famously said:
"I believe in a strong, robust executive authority, and I think that the world we live in demands it -- and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them."
So in theory, President Obama use of recess appointments would have Dick Cheney's blessing. 
According to the Cheney view, recess appointments are simply a tool that a president was able to use. That tool was used so often that it finally became so bad that   Democratic Senate Majority Leader Harry Reid moved to block Bush from any further recess appointments because of his overuse of the tactic. Some of those appointments, it should be added, occurred after the Senate had opposed the candidate. 
The full list of Bush's recess appointments is quite impressive too.  
Today the conservatives are whistling a different tune and hoping that nobody recalls what went on in the Bush era. Back then, we didn't hear any Republican declaring, as Mitch McConnell did about Obama,
"The president's decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab...We will demonstrate to the Court how the president's unconstitutional actions fundamentally endanger the Congress' role in providing a check on the excesses of the executive branch."
Back when Reagan or George Bush was doing it,  Democrats might well have howling to the moon. In response, conservatives declared that it was simply a president using a long-standing prerogative of his office. Who cared about providing checks on the excesses of the executive branch then. 
Certainly not Senator McConnell.

Supreme Court: Making Matters Worse
This trend, therefore, represents the large battle-lines between the branches of power. It also paints in vivid colors an image of two parties unable and unwilling to work together. Proof? The only time you would never see a recess appointment is when the president's party has a majority in Congress.
But then one of the advantages of any autocratic state is the lack of obstacles and opposition. That's not something we should wish for.

If the conservative-dominated Supreme court backs up the lower court, then from now on, it could be a recipe for stagnation especially when the Senate is dominated by the opposition party. Worse than what we have already seen. From now on, Senate will be able to effectively thwart any president's ability to carry out his duties.
The crippling of the executive office may very well continue long after Obama has left the White House. If the Supreme Court wishes to resolve this problem fairly- and there's plenty of doubt about that- then the only solution to deal with both sides of the recess appointment problem. That is, the problem of willful obstructionism by the Senate to confirmation of appointees. 
Without a balanced decision by the Supreme Court, which as we have seen, is expecting a bit much, the twin problem of the overuse of recess appointments by presidents and Congressional obstructionism will continue. Still worse, it will eventually grind the wheels of government to a complete halt.