He only gets along with yes men. "I refuse to take 'no' for an answer," Obama said last Wednesday of his decision to make a "recess" appointment that placed Richard Cordray as head of the new Consumer Financial Protection Bureau. The Constitution, of course, gives the president the power to make appointments during Senate recesses. Technically, however, the Senate was in session. The imperial president bypassed Senate rules and years of precedent because he wouldn't or couldn't cut a deal.
Later Wednesday, the White House announced three more recess appointments for vacant seats on the National Labor Relations Board. Obama explained, "When Congress refuses to act and, as a result, hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them."
Obama, a former constitutional law professor, just kicked the Constitution's delicate balance of powers by using the executive boot to step on the Senate's power to advise and consent.
I understand the president's frustration with the system. In December, 53 senators voted in Cordray's favor, but under Senate rules, 60 votes are needed to bring his confirmation to an up-or-down floor vote. (Republican senators don't have a problem with Cordray per se. They used his nomination in an attempt to roll back some of the regulatory powers and increase congressional oversight of the new consumer bureau, created in the Dodd-Frank law.)
The 60-vote threshold may not seem fair. But in his 2006 book, "The Audacity of Hope," Obama wrote, "To me, the threat to eliminate the filibuster on judicial nominations was just one more example of the Republicans changing the rules in the middle of the game." He was angry with Republicans for thinking about flouting precedent.
Obama, however, didn't seem to mind when Democrats changed the rules during George W. Bush's presidency. On Nov. 16, 2007, Senate Majority Leader Harry Reid announced that the Senate would hold pro forma sessions -- that could involve little more than gavel rattling -- during the Thanksgiving holiday "to prevent recess appointments."
According to the Congressional Research Service, "the Senate pro forma session practice appears to have achieved its stated intent: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency." Upon Obama's election, recesses resumed, but in 2010, the Senate resurrected pro forma sessions.
And now Reid agrees with Obama aides who say that his pro forma sessions are a gimmick. He's supporting the president's attempt to undermine Senate power.
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