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.
In 2010, two former Bush attorneys wrote an opinion piece in which they urged Bush to call the Dems' bluff on "phony" pro forma sessions. Bush did not oblige. He may not have liked the "phony" rules, but he showed respect for the Senate's prerogative.
What would happen if Obama were to win re-election this year but the GOP won the Senate? How would Obama get anything done?
"He's poisoning the well," observed University of California, Berkeley law professor and former Bush administration attorney John Yoo. Worse: "This is going on when his party is in charge."
This is how little Obamaland respects Reid's Senate. White House communications director Dan Pfeiffer wrote on the White House blog Wednesday, "The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks." Then Pfeiffer attacked the pro forma gimmick.
"It was during one of those pro forma sessions, which they call a gimmick, that we passed the two-month extension for the payroll tax holiday," Don Stewart, spokesman for Senate Minority Leader Mitch McConnell dryly observed. On Dec. 23, the Senate gave Obama what he wanted. As a reward, the administration says the Senate wasn't really doing anything.
Republicans scratch their heads. For years, the chattering classes bemoaned Bush's copious use of executive power. Yet when Obama steps on the Senate, news reports describe Obama's behavior as bold and media-savvy.
The bigger issue, however, concerns Team Obama's apparent decision to win re-election by playing to the liberal base, not the American political middle. While the administration should be working to heal the economy, the administration is busy pointing fingers at bad Republicans.
Tea Party Express co-founder Sal Russo likened the Obama strategy to Bush guru Karl Rove's strategy to win re-election in 2004 by ginning up the base. Russo doesn't see how it could work for the Democrats this year.
To independent voters especially, the president's failure to work with Congress doesn't compute. "Look, you're president," Russo said. "Why can't you just walk over to Congress and talk to these guys?"
To the average Joe, there's only one standard, noted Russo. "You've got to get the job done."
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