Iain (here and here) and Dan (here) are right to be outraged at President Obama’s brazenness (if not lawlessness) on the recess appointments, but it is not like he lacks accomplices. Senate Majority Leader Harry Reid has backed the president’s play, according to the Hill. Senate Democrats will no doubt echo that support.
The hypocrisy here is blatant, even by congressional standards. In 2007, Reid kept the senate in pro forma session in order to block President Bush from making recess appointments — particularly, the eminently qualified Steve Bradbury’s appointment to head DOJ’s Office of Legal Counsel. “I had to keep the Senate in pro forma session to block the Bradbury appointment,” Reid recounted in 2008. “That necessarily meant no recess appointments could be made.
The Senate has similarly been holding pro forma sessions over the current holiday recess to keep the session technically ongoing, thus blocking — or at least they thought they were blocking — Obama, just as Bush was blocked. But Obama ignored the move, reasoning that such brief sessions (held roughly every three days and lasting only seconds) should not count. Despite the position he took during the Bush years, Reid today said, “I support President Obama’s decision.” His rationale, if you can call it that, is that while he was just trying to block recess appointments, Republicans are blocking such appointments for the specific purpose of re-legislating the Dodd-Frank law.
The theory of separation of powers is that the respective branches have a powerful incentive to protect their turf and will therefore police each other’s encroachments. Apparently … not so much. In any event, since the president is in the hardball business, he can only be stopped (or at least discouraged) if Congress uses its constitutional tools in kind. It is worth remembering that the government cannot function if the House declines to raise and spend money, and Obama cannot get anyone appointed from here on out unless the Senate, once it is in session, can muster 60 votes. So my question is: are Republicans just going to grouse about this, or are they actually going to do something about it?