Obama vs. The Constitution

Mickey Kaus Columnist
Font Size:

It’s been noted that both sides in the dispute over President Obama’s “recess” appointments are making arguments with potentially ugly logical consequences.

a) President Obama claims that he gets to decide when Congress is in “recess,” which seems to mean that anytime Congress breaks for the weekend a President could staff the entire executive branch without the Senate approval the Constitution seemingly contemplates (“advise and consent”). **

b) The GOP position is that the President can’t make “recess appointments” unless the Senate says it’s in recess, and if the Senate never recesses the President can never make recess appointments. Simple!  But what if, thanks to the extraconstitutional filibuster rule, this setup gives a Senate minority the power to prevent the president from staffing the government at all?

One way way of deciding the fight between the two intepretations might be to look at the mechanisms that would be required to prevent the worst case scenarios for each.

a) For Obama’s interpretation: If we adopt Obama’s interpretation, the damage-control mechanisms are clumsy. A court–I’m assuming Obama would still allow for judicial review, even when “We Can’t Wait”—would have to decide wheter a recess was real or “fictitious.”  Presumably it would look at the rules for any “pro forma” session, maybe figuring out how many members were how many hours away from reconvening if necessary, and how much could be accomplished online, etc. The inquiry would be complicated by the acknowledgment, even by Obama’s defenders, that one of the “fictititious, gimmicky, really-in-recess sessions wound up approving the President’s #1 legislative priority, the payroll tax cut extension. Whoops! Aside from that …

In Laurence Tribe’s version, the President’s extraordinary fiction-penetrating authority would be further limited to cases of “transparent and intolerable burdens.” Good luck figuring that out.  Perhaps the Court could consult Prof. Tribe.

Of course, every decision made by one of the disputed “recess” appointees would be suspect while the three levels of the federal judiciary made up their collective mind as to whether or not the Senate really was on an intolerable break or had just stepped out for a smoke. Why liberals should want the rules and regulations they seek to have all the moral authority of Bush v. Gore, I don’t know.

Ah, say Obama’s defenders, that’s not the only remedy for overreaching.  Why

Senators …  have plenty of leverage to protect the Senate’s advice and consent role. Senators can block the confirmations of other nominees, they can stall the president’s legislative agenda and they can refuse to approve the president’s budget requests. … And Congress has prohibited paying a salary to a recess appointee if the president declines to put forward any nominee for the office.

But this is just the sort of gridlock-inducing obstructionism that we’re told Obama’s recess superpowers are designed to stop. Now, all of a sudden, we’re told it’s practically a constitutional duty in order to check the President.

None of these solutions, in short, is very appealing.

 b) For the GOP interpretation (formerly known as the Harry Reid interpretation): What’s the remedy if the GOP’s current interpretation prevails? The president’s recess power, remember, would simply disappear when the Senate is controlled by the opposite party and decides never to recess (or when, as in the current case, when the minority party extracts a no-recess concession in negotiations).  Maybe the Senate majority even wants to cripple various government agencies.

But crippling the government is presumably quite unpopular, which is why, say, the appointments of Supreme Court justices aren’t routinely put on indefinite hold.  A Senate-controlling party that tried to shut down the Pentagon, for example, or the Social Security Administration would presumably pay a big price at the next election.  The less popular the agency, the less big the price. The Consumer Financial Protection Bureau –probably pretty popular! The NLRB?  Who knows? Obama’s obviously within his rights to make GOP obstruction of these agencies an election issue. We’ll see how the voters feel. (Is it crazy to think that this sort of battle could be one way to bring the general interest to bear on the fabled special interests, who often control particular agencies they care about?)

But what if, as now, the party doing the obstructing is in the minority–and is using the Senate’s filibuster rule (which effectively requires a 60-40 supermajority) to hold things up? The answer is that if the minority holdup is really imposing a “transparent and intolerable burden” on the functioning of government then the majority can suck it up and use its power to finally neutralize or eliminate the filibuster rule (Senate Rule 22). If the majority– in this case the Dems–don’t want to eliminate that rule then maybe the burden is not so “intolerable.”  Simple and self-executing. A built-in, democratically grounded, check on obstructionism. No judicial intervention required.  The sort of system that, say, the Framers of the Constitution might have designed.

It’s true that under this GOP-backed rule the default result is inaction–even the failure to staff a new government agency.  But that’s the Constitution for you. Its default position is almost always inaction. It sets up two houses of Congress, and both of them and the President must all agree for anything to get done, including activating the Consumer Finance Protection Bureau. That’s not an ideal situation. It’s more like a gridlock machine! **** But it’s hard to argue that because the GOP’s interepretation shares the flaws of the Constitution it’s unconstitutional, unless the Constitution is unconstitutional. That would be a ‘high roller” argument.


**–Some pro-administration lawyers argue that the Senate was “functionally” not open for business–e.g. in recess–because the terms of the recess resolution said that no business would be conducted. But it wouldn’t be hard for the Senate to set up future confrontations by simply changing the wording of its resolutions, or by never going into even a 24-hour break at all–for example, by having one senator out of a rotating cast give a speech each day.  Nor is it easy to tell, in advance, when a “pro forma” session, whatever the wording,  might still wind up doing some business–as apparently happened with the payroll tax cut extension. In any case, with modern travel and communications it is easy for the Senate to be effectively open for busines and capable of dealing with appointments 24/7.  If there’s no functional recess then maybe the “recess” power is never triggered–the way the Vice-President’s tie-breaking power is never triggered if there isn’t a tie. The functional definition of “recess” doesn’t get the administration very far.

***– Tribe, in the proud tradition of liberal legalism, thinks that this lawsuit and resulting torturous deliberations would be a great thing. (“The scant judicial doctrine on recess appointments will surely benefit from careful assessment of text, history and structure.”) Another chapter for his textbook.

**** — The entire 20th century administrative state– i.e., all those agencies that have to be staffed–is in one sense an attempt to get around the difficulty of passing regulations the way laws are normally passed. Peter Orszag’s recent anti-democratic jag breaks new ground mainly because he frankly proposes farming out basic policy decisions (like what Medicare benefits to offer, maybe even tax policy) to boards insulated from the Constitution’s designated, elected legislatures. He also offers a fashionable new rationale–it’s “polarization” that makes Congress unable to do what “everyone” agrees is the right thing!  Maybe. But it’s also the Constitution.

Mickey Kaus