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Continued: Recess appointment flap -- a sign of the rule-bending times

  • Article by: D.J. TICE , Star Tribune
  • Last update: January 10, 2012 - 8:05 PM

Republicans and their pundit friends are accusing President Obama of "trampling on the Constitution" last week when he made four so-called "recess appointments."

It's hyperbole at best, of course. Yet this procedural skirmish is part of a bigger trend that really should annoy Americans.

We're all frustrated with today's unending political stalemate.

But there is no wholesome cure for policy paralysis in an epidemic of procedural contortionism -- in which rule-bending and boundary-stretching politicians, unable to persuade or compromise, govern increasingly by hoodwinking one another.

Overreaching interpretations of constitutional powers, pure obstructionist tactics and resorting to absurd technicalities are nothing new, of course. But they seem to be proliferating -- and there's danger in it.

America's founders never supposed that their descendants would agree about things. It is devotion to the rules under which we disagree -- our constitutional order, if you prefer a fancier term -- that is the indispensable consensus of American life.

We ought to resist tribal, partisan responses to procedural gamesmanship. Do you tend to admire rule-stretching tricks when your own ideological champions perform them -- and to fear imminent tyranny when opponents turn the tables?

Of course you do. So do I. And to that extent, we are part of the problem.

In the latest sideshow of procedural tomfoolery, Obama used recess appointments to name a director for the newly created Consumer Financial Protection Board and three members of the National Labor Relations Board.

He did it because Republicans in the Senate, where they are in the minority, had been using various procedural devices to prevent these nominations (among many others) from coming up for a confirmation vote.

This technique for thwarting appointments -- preventing a vote when you can't defeat a nomination outright -- isn't new, or unique to Republicans.

But the motive in these cases has appeared to be to prevent the CFPB and the NLRB from functioning properly, or at all -- by denying the consumer board a chief executive and the labor board a legal quorum.

Obama's countermove, the recess appointment, has a very long history. The president's power to temporarily fill federal offices when the Senate is not in session is spelled out in the Constitution.

Initially, it was intended to address the reality that in earlier daysCongress was out of session much of the time -- for months on end, a pattern that continued from the republic's founding well into the 20th century.

Important jobs, it was thought, would go unfilled for no good reason if there weren't some mechanism for replacing vacancies during the Senate's absences.

But from the beginning, presidents have also found the recess appointment power a handy device for sneaking controversial appointees past an uncooperative Senate. Its use has become especially cynical in the modern era, when recesses are so short that circumvention is really a recess appointment's only purpose.

What's new in Obama's appointments is that the president has refused to play along with a recently minted trick Republicans borrowed, with some modifications, from Senate Democrats, who invented it to block recess appointments during George W. Bush's presidency.

Like many underhanded ploys, this gets complicated. But basically, Republicans in the House (the only chamber where they hold the majority) have refused to consent, as the Constitution requires, to a formal Senate recess.

This has forced the Senate to pretend to be in session when it really is not, holding momentary "pro-forma" sessions every few days. The Democrat-controlled Senate did this willingly enough, and for the same purpose, in the last Bush years.

So, let's review: 1) Obama has called the Senate's bluff on its fake sessions, 2) in order to make recess appointments that really aren't justified by a prolonged Senate absence, 3) while all the while Republicans are blocking confirmation votes they couldn't win to paralyze agencies that they can't abolish or restrain via legislation.

It's shenanigans all the way down.

One would cheerfully write all this off as merely the latest bout in a long historic brawl over the appointment power if only it didn't come amid so many other current examples of procedural extremism.

Consider a few specimens among many:

• Ever more frequent recourse to Senate filibusters, to the point where that body has in effect amended the Constitution singlehandedly, requiring a 60-vote supermajority to conduct almost any business.

• Obama's refusal to comply with requirements of the War Powers Act in his air campaign against Libya, on the comical grounds that bombing that country did not constitute "hostilities."

• Suggestions, most prominently from GOP presidential hopeful Newt Gingrich, that the political branches should act to humble an "activist" judiciary -- abolishing courts, restricting their jurisdiction and commanding judges to explain themselves to Congress.

• At the state level, in neighboring Wisconsin, last year's flight to Illinois by Democratic legislators, the better to prevent a lawmaking quorum and derail a Republican governor's controversial program. Also, what is fast becoming in the Badger State a perpetual series of recall elections based on policy disagreements, not misconduct.

• Here in Minnesota, former GOP Gov. Tim Pawlenty's 2009 "unallotments," with which he attempted to sidestep the Legislature and singlehandedly shape the state budget. The state Supreme Court ruled the tactic unconstitutional. Then there is DFL Gov. Mark Dayton's recent unilateral order authorizing a unionizing vote among child-care providers. A court has blocked that move, too, and the matter is still in litigation.

• And what of the courts themselves, whose behavior has been known to test the patience of less volatile persons than Newt Gingrich? During last summer's so-called state government shutdown, a Minnesota district judge singlehandedly ordered funding for the vast bulk of state programs, without benefit of lawful appropriations. Later given the opportunity to weigh in, the state Supreme Court declined to say whether that judge had done the right or wrong thing.

The point isn't that all such high jinks (there are many more -- make your own list) are equally troubling. But there's nothing healthy in an ever-increasing willingness to play fast and loose with institutional boundaries and the rule of law.

Because, when you come right down to it, a fussy respect for rules is one of the main things that distinguishes us from places like Libya.

* * *

D.J. Tice is the Star Tribune's commentary editor. 

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