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Posted on Sustainabilitank.info on January 26th, 2013
by Pincas Jawetz (PJ@SustainabiliTank.com)

Editorial

A Court Upholds Republican Chicanery.

Published – The New York Times on-line: January 25, 2013 -  73 Comments

For most of President Obama’s first term, Republicans used legislative trickery to try to prevent the functioning of two federal agencies they hate, the National Labor Relations Board and the Consumer Financial Protection Bureau. First they would filibuster the president’s nominees to the agencies, knowing that neither agency could operate without board members or a director. Then they would create fake legislative sessions for the Senate during its recess, intended solely to prevent Mr. Obama from making recess appointments as an end run.

Related News - Court Rejects Obama Move to Fill Posts (January 26, 2013)

Astonishingly, a federal appeals court upheld this strategy on Friday. Mr. Obama had declared that Congress was not really open for business during its one-minute, lights-on-lights-off sessions intended only to thwart him, and he made recess appointments. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit said his N.L.R.B. appointments were unconstitutional, buying the argument of Republicans that the Senate was really in session.

The court even broke with the presidential practice of 150 years by ruling that only vacancies arising during a narrow recess period qualify for recess appointments.

White House officials said the administration would appeal the decision to the Supreme Court, but if it is upheld, it will invalidate scores of decisions made by the labor board over the last year. Without lawfully appointed members, the board would lack a quorum and could take no action, unable to police union elections or ensure that companies treat unions properly. That is exactly the outcome hoped for by business interests and the right, furious that a board under Democratic control tends to rule in labor’s favor (after years of ruling for business during the Bush years).

The decision also threatens the work of the consumer bureau, which has been operating under a director, Richard Cordray, appointed during a recess after Republicans filibustered his nomination. A similar lawsuit is moving through the courts challenging his appointment.

The administration’s lawyers made a solid argument that a legislative session during which no business takes place, and when no nominations can be considered, is not a real session. The vast majority of senators, in fact, were out of town. Used in this way, the administration said, sham “pro forma” sessions prevented two executive-branch agencies from performing their lawful duties. Both agencies were created by majorities in Congress, but they were undermined by minorities.

The court’s opinion took no notice of the underhanded nature of these actions: Senate Republicans asked the House to remain in session solely to prevent Mr. Obama’s recess appointments, and the Constitution prevents the Senate from adjourning without the consent of the House, even if it meets only for a minute every three days. Using a cramped definition of “recess,” the panel’s Republican-appointed judges allowed a minority to abuse the recess-appointments clause of the Constitution for political ends.

The situation demonstrates how dysfunctional Washington has become because of these Republican abuses. Although Democrats also used pro forma sessions for this purpose under President George W. Bush, Republicans have blocked Mr. Obama’s appointments at a far higher rate, and they have gone much further by trying to shut down executive agencies through use of the filibuster.

Democrats could have changed this by agreeing to curb filibuster abuses this week, particularly on high-level presidential appointments, but they squandered the opportunity. The court’s decision demonstrates how their timidity is being used against them. With no sign that Republicans are willing to let up on their machinations, Mr. Obama was entirely justified in using his executive power to keep federal agencies operating.

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