American politics
Recess appointments and the Consumer Financial Protection Bureau
The quantum mechanics of government
Dec 28th 2011, 14:56 by M.S.
EVERYTHING in the world, all the time, is coming down to the last second these days. It's really incredible when you think about it. The fate of the euro comes down to fundamental transformations of the European Union's fiscal rules agreed to at 5am after marathon sessions between 27 heads of state. The American government is pushed to the brink of default until last-ditch negotiations pull out a deal to raise the debt ceiling. The payroll-tax cut and extended unemployment insurance come within days of expiration; last-minute deals will be needed to approve a budget resolution just days after other last-minute deals prevented a shutdown of the federal government; global climate negotiators go two days past deadline to salvage a deal that prevents a complete breakdown of international efforts to limit greenhouse-gas emissions. What's going on? It's like everybody has been studying negotiations-theory textbooks and they're all pushing global political systems to the edges of their envelopes, trying to derive one last millimetre of political advantage out of ever-narrower slices of time on the edge of gridlock or collapse.
The latest iteration of this ever-tighter cycle of gridlock may take the American political system down to an interval of time that approaches instantaneity. The GOP is blocking the required Senate votes to confirm Barack Obama's nominees for the new Consumer Financial Protection Bureau (CFPB) and for the National Labour Relations Board (NLRB). Normally, Mr Obama could circumvent this opposition temporarily by making recess appointments in the period when the Senate is out of session. To forestall this, Republicans are keeping the Senate technically in session, with a few senators holding pro forma sessions for a few minutes every day over the holidays. In response, Democrats and advocates of the CFPB are pressing Mr Obama to follow a precedent that has only been carried out once, by then-president Teddy Roosevelt in 1903, as The Hill's Peter Schroeder explains.
[T]he 20th amendment of the Constitution states that Congress shall assemble at least once a year, with each session beginning at noon on Jan. 3. Given that a new session must begin at that day, logic follows that Congress must adjourn for some period of time beforehand, however brief.
In fact, Theodore Roosevelt took advantage of this quirk of the Congressional calendar to push through nearly 200 nominees in a matter of seconds, when the Senate gaveled to close one session before almost immediately opening the new year’s.
The Dec. 8, 1903 story by the New York Times detailing the unprecedented move began succinctly: “Congress passed from one session to another to-day in a unique manner.”
With the units of time shrinking inexorably, the next stage of the argument will inevitably involve quantum mechanics. Republicans will argue that no time need elapse between the end of one session of Congress and the beginning of the next, while Democrats object that such instantaneity implies spooky action at a distance.
David Dayen adds a couple of simpler ways for Mr Obama to force a confrontation over recess appointments. The tradition that the Senate has to be out of session for three days has no force of law; Mr Obama could make a recess appointment when the floor has been empty for a few hours, then test the issue in court. Or he could use his constitutional authority to adjourn Congress, but no president has ever done that before.
Should Mr Obama do these things? It's always hard to get a moral grasp on procedural questions. But here's my take. The Republican decision to filibuster any and all nominees to head the CFPB until the institution is reformed to their liking essentially establishes the precedent that either party can kneecap the operations of any government agency, through the appointments process, until its demands for reform or policy shifts at the agency are met. That seems like a recipe for even greater government confusion, regulatory uncertainty and paralysis. Of course, one side of the political aisle in America is very often in favour of government paralysis. And as a practical matter, Republicans are likely to be more effective at using this tool than Democrats, because Republicans are better at maintaining the party discipline necessary to sustain filibusters. So whether or not you think each political party should have the ability to knock out agencies by filibustering appointments probably comes down to whether or not you think that, in general, government agencies ought to function effectively. If you think that in general it's a good thing when agencies lose the capacity to function, then I suppose there's nothing wrong with this development.
In this blog, our correspondents share their thoughts and opinions on America's kinetic brand of politics and the policy it produces. The blog is named after the study of American politics and society written by Alexis de Tocqueville, a French political scientist, in the 1830s
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"Given that a new session must begin at that day, logic follows that Congress must adjourn for some period of time beforehand, however brief."
Logic does nothing of the sort. There's nothing in the 20th Amendment saying that the previous session must be closed in a formal way before it ends, and in fact it seems to grant Congress the power to decide the particulars, since it says they can choose a different day than January 3. Logic does follow that the President should simply adjourn the session, as the plain language of the Constitution permits him to do. If we don't like this mixed-up state of affairs, we can amend the Constitution or Congress can try to pass a law about the end of sessions that passes muster with the Supreme Court.
Mr. Schroeder should also get a serious copyeditor who'd have pointed out that Schroeder's phrasing was implying that T.R. was using an Amendment that would not be passed for another 30 years.
I say, adjourn them. Then, cite the Founding Fathers and the Original Intent of the framers to defend it. See how the Republicans respond to being hoisted by their own petard.
Sorry, but Original Intent and Founding Fathers are only arguments allowed on positions that the far right Republicans agree with. Use of those arguments to oppsoe them is probably best classified as treasonous, and probably sacreligious as well.
And, of course, is totally invalid, since it is impossible for the Founding Fathers to have disagreed with modern (to use the term strictly in its chronological) conservative Republicans. No matter that their actual writings show them disagreeing with each other early and often.
That's not the case, jouris. Original Intent is allowed for anything; it's simply quite rare that the Left supports positions that that interpretation would argue for. And, no, sorry, it's not invalid, nor ever will be.
"Of course, one side of the political aisle in America is very often in favour of government paralysis."
Us Pirates are in firm agreement with your sentence.
(sarcasm mode: ON)
I kinda like the Republicans' plan for having a committee instead of one man at the head of the CFPB. If something goes terribly wrong, the committee can imitate Congress - much like the Financial Crisis of 2008 - and point fingers at each other instead of holding someone accountable.
(sarcasm mode: OFF)
Regards
I've never heard that the President has the power to adjourn Congress. M.S. (or bampbs, or anyone), could you please cite the paragraph in the Constitution that gives him this power?
Article II, Section 6:
"...he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper..."
I'd never noticed it before now either.
Article 2, Section 3. It only applies if the two houses of Congress cannot agree on a time to adjourn. But that would apply if, for example, the House adjourns and the Senate does not.
Me either. If I were President I'd use the heck out of that one.
I have no idea how I went from looking at Article II, Section 3, and copying and pasting that bit, to saying it was Section 6.
Yeah Doug, I guess it shows we're not a completely insane nation, because that power has been sitting there since the beginning, yet no President has risked throwing the government into crisis by using it.
Turkey Vulture:
The President only has that power when the House and Senate disagree about when they adjourn. Since both have to pass bills, it's kind of a moot point...
... most of the time. But imagine the following situation: The Presidency and House are controlled by party X. The Senate is controlled by party Y. The President does something naughty, the House votes to impeach (because they feel like they have to, not because they want to). The Senate, being of the other party, is eager to impeach. But the House, being really on the President's side, adjourns. The President then uses this clause to adjourn the Senate, so that they can't impeach.
Wouldn't *that* set off a constitutional firestorm...
Maybe the clause has been interpreted differently, but it seems like there actually needs to be disagreement between the House and Senate over the time of adjournment for the President's power to adjourn to come into play. But if a disagreement happens on January 4th, could the President adjourn them until the following January 3rd? That'd be quite the Constitutional crisis.
"But if a disagreement happens on January 4th, could the President adjourn them until the following January 3rd?"
Clearly that wouldn't work since Congress has to be in session to pass its monthly temporary budget extension.
No, T.V., it wouldn't be a Constitutional crisis. Subsequent laws of the same rank (in this case Constitutional passages) are held to have amended any previous ones to the extent that they conflicted with them, so the President cannot bar Congress from a time-specific Constitutional duty.
Schroeder doesn't mention whether Roosevelt's actions were ever taken to court. If not, it would be interesting to see what the courts would rule on such a ploy -- it being a given that the Republicans would launch some kind of suit over them.
Would any members of Congress actually have standing to challenge the action? Raines v. Byrd said members of Congress didn't have standing to challenge the Line Item Veto Act, because they didn't have the individualized stake, or experience the individualized harm, needed for standing.
But I can't remember whether this is based off of the Constitutional requirement for standing of a "case or controversy," or if it's one of those Court-created prudential considerations things.
I think the increase in brinksmanship is partly due to the hyper-connectedness of the world, the Congress being a case in point.
A few decades ago, serious men could meet in smoke-filled rooms, and find compromises that advanced everybody's goals a little.
These days, the ubiquitous media puts the constituents squarely in those rooms, and scream bloody murder for any concession that might be offered.
It's just hard to govern like that!
Sometimes I wonder if, as much as the Constitution has proven so useful thus far, a parliamentary system in which the party in government can do almost as they please would help us get out of this situation. The problem without the checks and balances is that you might end up with a power grab if you elect a government like the current one in Hungary, but you also get many more reforms done, like lately in Ireland, UK or Spain.
@blue asgard
You need to check your last pi digits
Give us a break! I was only 0.000006% out or 0.6 in ten million. Quite good enough for most calculations.
I suppose you'd prefer 3.1415926536 but, c'mon, my version was prettier.
'Beauty is truth, truth beauty – that is all
Ye know on earth, and all ye need to know'
J Keats 'Ode to a Greek Urn'
I stand by what the poet said.
It's a pity most of them are also ugly old white boys with wrinkled, fugly faces and are mostly out of shape, or maybe congress might be able to use that poem too!
Fugly faces?
Melissia, dahling, you've just given me indigestion.
Do you have any other brilliant observations?
I may need a Pepto-Bismal.
I'd love to see Obama adjourn Congress. He would be using a Constitutional power of the President to defeat the ongoing abuse of a mere Senate rule.
Schrödinger's Congress: A flask containing a call to session and a radioactive source, is placed in the sealed chambers. If an internal Geiger counter detects radiation, the flask is shattered, releasing the order, thus Congress is then in session. Thus Congress is perpetually both in and out of session and no one can do anything.
Personally at this point I'd rather go with the old fashioned experiment, but am not sure if the Copenhagen interpretation would hold up in court and absolve me of murder/terrorism charges.
It's not the Copenhagen interpretation you want but Hugh Everett IIIs 'Many Worlds' Interpretation.
In Copenhagen you always get the most likely outcome. If you poison the congressmen then they get exterminated, if you don't they don't. With 'Many Worlds' all the possible outcomes, from not eliminating any to eliminating them all, will apply simultaneously. The fact that you only see one of these outcomes is neither here nor there because it only applies in your present reality.
Could make a colourful court case, but as you say, unlikely to provide an effective defence, even if you prove that you got one of the less likely outcomes.
On the other hand you might get a Presidential pardon if you succeeded in eliminating the Republican majority :-)
I appreciate the additional information; by any chance might you be available as an expert witness to the defense?
Re "pushing global political systems to the edges of their envelopes, trying to derive one last millimetre of political advantage out of ever-narrower slices of time on the edge of gridlock or collapse":
Feels like 1914.
If you want to know why Washington is like this, I think I can explain it. It's because of abortion.
The trench warfare is the way it is because whoever holds the Presidency gets to nominate Supreme Court judges, and whoever controls the Senate gets to approve or block those nominations.
I think the fighting is really over the makeup of the Supreme Court, and the war is over abortion.
Those rascally Republicans.
I think a clever procedural answer to the filibuster is the process by which we come to quanta.
I think Obama should do those things. Not out of any love for Obama, nor out of any frustration with this one appointment. Both sides use these tactics. It's time that the tactics faced a challenge.
I have an outline for a DiA post called "Recess Appointments and the National Labor Relations Board - The Quantum Mechanics of the Government, Part II".
1. Obama nominated Terence F. Flynn as a Republican member to the NLRB board in January, but the Democratically-controlled Senate never held a confirmation vote.
2. The NLRB finally dropped its lawsuit against Boeing in November (which it filed on behalf of the Machinist's Union in April.)
3. The GOP Senate is now blocking Obama's nomination of Richard Griffin, a Democrat who is a general counsel for the IUOE and an AFL-CIO board member.
Given the above, can the NLRB function effectively as a non-partisan government agency in an election year?
"It's like everybody has been studying negotiations-theory textbooks and they're all pushing global political systems to the edges of their envelopes, trying to derive one last millimetre of political advantage out of ever-narrower slices of time on the edge of gridlock or collapse."
I don't think think that's what they teach in negotiation classes. I'm pretty sure that negotiation theories teach the exact opposite.
I feel like MS is the kid that stays at school while everybody else goes on x-mas break.
I'm sure his parents will pick him up any day now ....
JK:) Thanks for keepin' the blog going during the holidays.
This is a WPA for Beltway lawyers isn't it.
It should be noted that Democratic Senate Majority Leader Harry Reid did this during the Bush Presidency, holding the pro-forma sessions during the holidays.
And herein lies the issue. Every single Senate, the members of the opposition party (Democratic or Republican) find a new way to stall or hold hostage decisions left to the discretion of the executive branch.
Neither side feels obligated by such quaint things as "common courtesy" anymore.
I predict if President Obama carries out the maneuver Teddy Roosevelt did, the same Republicans who applauded President Bush for recess appointing John Bolton to UN Ambassador will act outraged, and the same Democrats who slammed President Bush for recess appointing John Bolton will praise Obama for circumventing Republican obstruction.
The issue here, ultimately, is a lack of grown-ups in the Senate. If you bother to listen to them speak, it's all, "They did it to us last time, so we're doing it to them this time, Wah Wah Wah!"