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President Has Decisions to Make on Recess Appointments Over Holiday Break

The reason that it was so easy to pass the two-month stopgap today on the payroll tax and unemployment insurance and the doc fix is because the House and Senate set up pro forma sessions throughout their holiday break, which extends into late January. These are designed to deny the President the ability to carry out recess appointments, by remaining “in session” despite Congress’ actual recess.

Now, the fact is that this cannot stop a determined President from making recess appointments if they wanted to. First, the pro forma session gambit on the part of Congress has never been challenged by the executive. There’s an advisory opinion showing that recess appointments apply when both houses of Congress are out of session for three days, but that has no force of law. The President could force that issue. Second, the President has Constitutional authority to adjourn Congress, and recess appointments could be made at that time. The third and least confrontational manner would be to wait until the first session of the 112th Congress ends and the second session begins in 2012, and make recess appointments in that split-second interregnum. Theodore Roosevelt used this period to make hundreds of recess appointments.

So there are ample opportunities for recess appointments. And because of the historic obstruction by Senate Republicans on Presidential nominees, there are also substantial justifications for them.

Five months after it opened its doors, the Consumer Financial Protection Bureau is poised to begin the year without a Senate-confirmed director […]

Republicans say their objection to Cordray’s nomination has nothing to do with the nominee.

Instead, they want three big changes to how the bureau is overseen. They want to replace the director with a board; make the bureau ask Congress for money each year; and gain more power to overrule the bureau.

Norman Ornstein, a public policy scholar at the conservative-leaning American Enterprise Institute, expects Obama to spend his winter vacation analyzing the political costs to sidestepping Congress on a number confirmations that Republicans have blocked.

“Frankly, if I were President Obama, I would do some recess appointments now, because what’s going on is unconscionable,” said Ornstein.

What you have here is a political party that lost the debate on creating a federal agency now holding that agency hostage – with real consequences, since non-bank financial institutions cannot be regulated by CFPB without a director in place – until they are allowed to gut the agency. And that’s just one of the many nominees who have been obstructed in this fashion.

The President can continue to get rolled by Congress, or he can bring some equilibrium to the process by using his Constitutional appointment power. Without a price to pay for obstructionism, the obstruction will continue.

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David Dayen

David Dayen