Lord I get tired of the mealy mouthed politicians who try to explain away their political demise be claiming the backwardness of the region, people or the culture is why they’re losing.
Republicans are slamming Sen. Mary Landrieu (D-La.) for comments they say suggested Louisiana voters dislike President Obama because of his race.
Gov. Bobby Jindal and Landrieu’s GOP opponent in her tough reelection race, Rep. Bill Cassidy (R-La.), both pounced on comments she made to NBC’s Chuck Todd that the South “has not always been the friendliest place for African-Americans.”
“It’s been a difficult time for the president to present himself in a very positive light as a leader,” she said, before adding that the South has not always been friendly to women either.
Apparently Mary Landrieu felt differently when she was elected to the U.S. Senate in 1996 and was re-elected by increasing margins in competitive races in 2002 and 2008. That’s right, the largely red state has elected a woman and a Democrat to terms totaling 18 years in the US Senate.
But now … sexism.
And we have an abomination of a President, one who has nothing to present in a “positive light”, who happens to be black, so … racism.
And don’t forget to throw in a stereotypical comment about the South … because she’s in danger of losing.
As usual, its everyone else that’s the problem, not the fact that Mary Landrieu has done things, such as vote for ObamaCare, that have caused the voters in the state to finally say “enough”. Nope, with Democrats, it’s never the message, policy or vote, it’s always something or someone else’s fault.
Racism. Sexism. Republican dirty tricks. Etc., etc., etc. ad nauseum.
A short one today, but I thought it instructive to bring up the fact that despite the claims of Democratic operatives and media types, the GOP isn’t the reason that Barack Obama’s Surgeon General nominee isn’t in that office. Byron York explains:
There are 55 Democrats in the Senate. Since Majority Leader Harry Reid changed the rules to kill filibusters for nominations, it would take just 51 votes to confirm Murthy. Democrats could do it all by themselves, even if every Republican opposed. But Democrats have not confirmed Murthy.
In other words, the claim is worthy of 4 Pinnochios if fact checkers were doing their job.
No, apparently the job is still vacant (yeah, I know there’s an acting SG) because apparently Democrats have a problem with the nominee.
This week, Bruce McQuain makes his triumphant–albeit mean-spirited and cruel–return, to talk with Michael and Dale about Iran, The Census Bureau. and the Senate’s filibuster rules.
The direct link to the podcast can be found here.
As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here.
Let me preface this by saying there is absolutely no need for new gun control legislation. None. Nada. Zip. Zero.
The claims by the left that gun control legislation will solve problems of violence are nonsense. Period.
But that likely won’t stop the usual suspects among GOP Senators from helping the left in their incremental but determined efforts to limit your 2nd Amendment rights. Apparently “Congress shall make no law” has a different meaning to some people:
Sen. John McCain (R-Ariz.) has emerged as a key player if Senate Democrats are to have any chance of passing legislation to expand background checks for private sales of firearms.
McCain and Sens. Susan Collins (R-Maine) and Dean Heller (R-Nev.) are at the top of a list of Republicans considered most likely to sign on to legislation expanding background checks after talks with Sen. Tom Coburn (R-Okla.) stalled earlier this month.
Sen. Mark Kirk (R-Ill.) has signaled he will likely support the yet-to-be-finalized proposal he negotiated with Sens. Charles Schumer (D-N.Y.) and Joe Manchin (D-W.Va.) to expand background checks to cover private gun sales, according to Senate sources.
Of course we’ve been assured by some that this is really of no big consequence and we should relax and let it happen.
Like I said in the beginning – there is absolutely no need for new gun control legislation – none. The fact that some in the GOP seem poised to make that happen anyway should tell you all you need to know about certain members of that party and their professed claim to believe in your Constitutional rights all while negotiating parts of them away.
The Senate filibuster fight gins up – hypocrites to the left of us, hypocrites to the right … (Update)
Another example of why you can’t ever take anything a politician says at face value or believe them when they say they stand on ‘principle’.
For instance, consider the looming Senate fight over the filibuster.
Once a cause championed by a few Democratic senators, changing the filibuster has become a top priority for Senate Democrats who’ve repeatedly complained about Republicans blocking legislation from even being debated on the Senate floor. Reid noted on Monday that in his nearly six years as majority leader, he has faced 386 Republican-led filibusters in the chamber.
“We can’t continue like this,” a visibly frustrated Reid Monday said in a response to McConnell.
Of course the “visibly frustrated” Senate Majority Leader, Democrat Harry Reid, was one of those huge champions of the filibuster when he was a minority leader and then the new Majority Leader because he’d used it many times in his long political career:
SEN. HARRY REID (D-NV):“As majority leader, I intend to run the Senate with respect for the rules and for the minority rights the rules protect. The Senate was not established to be efficient. Sometimes the rules get in the way of efficiency. The Senate was established to make sure that minorities are protected. Majorities can always protect themselves, but minorities cannot. That is what the Senate is all about.” (Sen. Reid, Congressional Record, S.11591, 12/8/06)
REID: “For more than 200 years, the rules of the Senate have protected the American people, and rightfully so. The need to muster 60 votes in order to terminate Senate debate naturally frustrates the majority and oftentimes the minority. I am sure it will frustrate me when I assume the office of majority leader in a few weeks. But I recognize this requirement is a tool that serves the long-term interest of the Senate and the American people and our country.” (Sen. Reid, Congressional Record, S.11591, 12/8/06)
REID: “I say on this floor that I love so much that I believe in the Golden Rule. I am going to treat my Republican colleagues the way that I expect to be treated. There is no ‘I’ve got you,’ no get even. I am going to do everything I can to preserve the traditions and rules of this institution that I love.” (Sen. Reid, Congressional Record, S.11591, 12/8/06)
REID:“…one of the most sacred rules of the Senate – the filibuster… It is a unique privilege that serves to aid small states from being trampled by the desires of larger states. Indeed, I view the use of the filibuster as a shield, rather than a sword. Invoked to protect rights, not to suppress them.” (Sen. Reid, Congressional Record, S.434, 1/5/95)
Yeah, well that was then and this is now. The “world has changed” as Republican Senator Saxby Chambliss said this week as he sought to duck out on his pledge of years past not to vote on raising taxes.
You have to love the Reid line about the Senate not being established to be efficient – see the budget. Going on 4 years without one. But you see, getting a budget passed would require Reid and the Democrats to compromise with the Republicans in order to achieve that 60 vote margin and, well, he’s just not willing to accomodate the minority despite his stirring words to the contrary about protecting the rights of the Senate minority, words, by the way, he’s likely to dismiss now.
And, as you hear the fight gin up, don’t forget the past words of other Democrats who will now call the GOP minority obstructionists and tell us all the filibuster is bad and has no place in the Senate. For instance, if we hear the President opining, it’s alway nice to remember his words on the subject for the brief period he was a Senator and take his words, on both sides of the issue, with a grain of salt:
SEN. BARACK OBAMA (D-IL): “The American people want less partisanship in this town, but everyone in this Chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.” (Sen. Obama, Congressional Record, S.3512, 4/13/05)
OBAMA: “[T]he American people sent us here to be their voice… What they do not expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.” (Sen. Obama, Congressional Record, S.3512, 4/13/05)
And, of course, that’s precisely what the Democrats and Obama want the Senate GOP to do – sit down and be quiet.
On any subject, you know little Chucky Schumer has an opinion:
SEN. CHUCK SCHUMER (D-NY) On Any Threat To The Filibuster: “The basic makeup of our Senate is at stake. The checks and balances that Americans prize are at stake. The idea of bipartisanship, where you have to come together and can’t just ram everything through because you have a narrow majority, is at stake. The very things we treasure and love about this grand republic are at stake.” (Sen. Schumer, Congressional Record, S.4801, 5/10/05)
SCHUMER: “We are on the precipice of a crisis, a constitutional crisis. The checks and balances which have been at the core of this republic are about to be evaporated by the nuclear option. The checks and balances which say that if you get 51% of the vote you don’t get your way 100% of the time. It is amazing it’s almost a temper tantrum… They want their way every single time, and they will change the rules, break the rules, misread the Constitution so they will get their way.” (Sen. Schumer, Congressional Record, S.5208, 5/16/05)
Yes, it was a “Constitutional crisis” in ’05. Now? Not so much. Speaking of temper tantrums, funny how one’s words can come back to haunt them, not that they care.
Finally, we have dandy Dick Durbin who also thinks it is time to change the filibuster rules, although in ’05, he had a completely different take on the subject:
SEN. RICHARD DURBIN (D-IL): “Those who would attack and destroy the institution of the filibuster are attacking the very force within the Senate that creates compromise and bipartisanship.” (Sen. Durbin, Congressional Record, S.3763, 4/15/05)
DURBIN: The filibuster is “[one] of the most treasured and cherished traditions of the United States Senate.” “Many of us in the Senate feel that this agreement tonight means that some of the most treasured and cherished traditions of the United States Senate will be preserved, will not be attacked and will not be destroyed.” (Sen. Durbin, “Statement Of Sen. Dick Durbin Regarding The Agreement On Judicial Nominations In The Senate,” Press Release, 5/23/05)
It’s not so treasured any more, is it? At least not by Senate Democrats who were so enamored with it in ’05.
The point of course is obvious. Don’t ever believe anything any politician of either side says on any subject – ever. They’ll bail on it in a New York minute if they see political advantage in doing so. Pledges and “traditions” mean nothing to them.
If faith in government is built on trust, and trust is built on political leaders promising to do things and then keeping their word, trust in this government died quite a while ago.
And that’s sort of the crux of the problem isn’t it? We are represented by an amoral political class who doesn’t hold their word to mean anything and reserve the right to change their “principles” on the fly in an attempt to gain temporary political advantage.
We’re served by the worst political class I can remember.
The problem is we can’t blame them – we elected them, and, like Harry Reid and Saxby Chambliss, we’ve kept them in office for decades.
Unfortunately, when you don’t pay attention and you just tune in when it is convenient for you, you get exactly what you deserve in DC. This is just another in a long line of examples of that truth.
UPDATE: Apparently the WSJ and I are on the same wave-length today:
One of the more amazing post-election spectacles is the media celebration of Republicans who say they’re willing to repudiate their pledge against raising taxes. So the same folks who like to denounce politicians because they can’t be trusted are now praising politicians who openly admit they can’t be trusted.
If Republicans in Congress want to repudiate the pledge, they are free to do so at any time. They could even quote Edmund Burke’s line that a democratic representative owes his electors his best judgment, not a slavish fealty to majority opinion. But that would mean saying they didn’t mean it when they signed the pledge. So they are now busy pretending that Mr. Norquist is a modern Merlin who conned them into signing the pledge and must be eliminated before they can do the “right thing” and raise taxes.
Republican voters know that elections have consequences and that Mitt Romney’s defeat means there will be policy defeats too. But they will give the House and Senate GOP credit if it fights for its principles and drives a hard bargain. The voters are also smart enough to know that Republicans who focus on Mr. Norquist are part of the problem.
But apparently, for some, it’s too much to ask our politicians to stand by their word. Apparently, principles are only important when these people say they’re important. At other times, they’re very malleable or can be thrown to the side and rationalized away. And in this case, the rationalization apparently says that political necessity now requires that a crumb be thrown to “public opinion”.
With other people’s money, of course.
If you were a group pushing legislation called the “Paycheck Fairness Act” that demanded gender equity in pay and benefits for working women (i.e. women being paid the same as men) and were beating up the other side and accusing them of making “war on women”, do you suppose before you did either you’d ensure your skirts were clean (no pun intended)?
Would you ensure you were paying women in your employ equally before trotting out your bombastic accusations?
Well most smart folks would, but we’re talking about Democratic Senators here. Five female Democratic Senators held a press conference yesterday in which they did exactly that – demanded equal pay for women and beat up Republicans. But:
Of the five senators who participated in Wednesday’s press conference—Barbara Mikulski (D., Md.), Patty Murray (D., Wash.), Debbie Stabenow (D., Mich.), Dianne Feinstein (D., Calif.) and Barbara Boxer (D., Calif.)—three pay their female staff members significantly less than male staffers.
Murray, who has repeatedly accused Republicans of waging a “war a women,” is one of the worst offenders. Female members of Murray’s staff made about $21,000 less per year than male staffers in 2011, a difference of 35.2 percent.
That is well above the 23 percent gap that Democrats claim exists between male and female workers nationwide.
Its not just the Democratic women in the Senate though:
The pay differential is quite striking in some cases, especially among leading Democrats. Sen. Chuck Schumer (D., N.Y.), who runs the Senate Democratic messaging operation, paid men $19,454 more on average, a 36 percent difference.
Majority Whip Dick Durbin (D., Ill.) paid men $13,063 more, a difference of 23 percent.
Other notable Senators whose “gender pay gap” was larger than 23 percent:
- Sen. Bernie Sanders (I., Vt.)—47.6 percent
- Sen. Jeff Bingaman (D., N.M.)—40 percent
- Sen. Jon Tester (D., Mont.)—34.2 percent
- Sen. Ben Cardin (D., Md.)—31.5 percent
- Sen. Tom Carper (D., Del.)—30.4 percent
- Sen. Amy Klobuchar (D., Minn.)–29.7 percent
- Sen. Kent Conrad (D., N.D.)–29.2 percent
- Sen. Bill Nelson (D., Fla.)—26.5 percent
- Sen. Ron Wyden (D., Ore)—26.4 percent
- Sen. Tom Harkin (D., Iowa)—23.2 percent
By the way, you do recall that one of the first pieces of legislation passed in the Obama administration was something called the “Lilly Ledbetter Fair Pay Act” which supposedly “solved” the gender pay disparity issue? Hey, it’s in all of Obama’s campaign literature.
“We passed the Lilly Ledbetter Fair Pay Act—the first bill I signed—so that equal pay for equal work is a reality all across this country,” he said in June 2009.
And you can see how well it “solved” the disparities that exist among Democratic Senatorial staffs, can’t you?
President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903. According to the Congressional Research Service (PDF):
[T]he President made recess appointments during a transition between sessions of less than a day in length, where no concurrent resolution regarding the transition between sessions had been adopted. In fact, it appears that little time elapsed between the sessions on this occasion. When the first session of the 58th Congress ended, at noon on December 7, 1903, and the second session began soon thereafter, President Theodore Roosevelt made over 160 recess appointments—mostly of military officers. President Roosevelt treated the period between these sessions as a “constructive recess.”
This particular case, the "recess" was literally seconds long. The Senate was not pleased, and 14 months later issued a report that condemned the President’s actions in that particular case; however (PDF):
The 1905 Senate Judiciary Committee Report was issued fourteen months after this action and, as is indicated by the quotation included above, emphatically rejected Roosevelt’s action. It is important to note, however, that the Report, while expressing disapprobation of the President’s exercise of the recess appointment power in such a manner, could be interpreted as validating the execution of intrasession recess appointments generally. Furthermore, Roosevelt’s actions could be viewed as a practical manifestation of the potential infirmities of the Knox interpretation: that is to say, if a formalistic interpretation of the Clause rests upon a concern that allowing intrasession appointments will foster systematic avoidance of the Senate’s advice and consent function, the fact that a President is able to make such appointments during an instantaneous “constructive recess” of the Senate would appear to belie such a distinction.
Indeed, part of the relevant language of that report states:
It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments. – Senate Report No. 58–4389, at 2 (1905).
At the very least, a colorable argument can be made that the mere existence of pro-forma sessions held for the specific purpose of disallowing recess appointments, during a time when the Senate is unable to meet to discharge its advice and consent functions, is itself an unconstitutional usurpation of the president’s Constitutional powers. There is nothing in the Constitution to indicate the president’s recess appointment power is any less important than the Senate’s advice and consent power.
President Roosevelt’s “constructive recess”, which took place between 12:00pm and 12:01pm on 7 December, 1903 surely seems a stretch of the idea of what a recess is. But, in the proximate case of President Obama it just as surely a stretch to argue that the Senate was "in session" while it was unable to meet to conduct any business. Indeed, the specific adjournments about which we are concerned here explicitly stated that no business would be conducted.
Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.
As John Elwood puts it at the libertarian/conservative legal blog "The Volokh Conspiracy":
Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices. Cf. McAlpin v. Dana, No. 82–582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”).
So, it is far from clear that it was the President, rather than the Senate, who was acting in a manner that violated the Constitutional separation of powers.
Alas, the case of the Cordray nomination still has an unfortunate wrinkle for the president. The specific statutory language of Section 1066 of Dodd-Frank states that the functions of the CFPB cannot be turned over from the Secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” Section 1011, in turn, states: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”
So, while the president arguably has the power to make recess appointments during pro-forma sessions of the Senate, the statutory language of the law provides that the CPFB cannot be created as an independent agency until after its first Director is confirmed by the Senate. In effect, this means that, while the president may make a recess appointment to the CPFB post, the Bureau that post oversees cannot actually be created until the Director is confirmed by the Senate. So, according to the statute, Mr. Cordray is the bureau chief of a non-existent bureau, until he can be confirmed. So, I hope they can find a nice office for him somewhere, with a comfortable napping couch.
This, in turn, brings up the question of whether sections 1066 and 1011 of Dodd-Frank consist of an unconstitutional violation of the separation of powers by impeding the president’s power to make recess appointments.
But, I’m pretty sure I don’t want to get into that issue at this point.
What should be clear, though, is that President Obama’s recess appointments are, in fact, arguably legal and constitutional, while the practice of pro forma sessions designed to prevent recess appointments are arguably illegal and unconstitutional.
Moreover, the Congress has a number of options for overturning the appointment of Mr. Cordray. They can refuse to fund the CFPB until he is confirmed. They can impeach him. As a recess appointee, they can reduce his pay to nothing.
The bottom line is that there are substantial tensions to recess appointments, and a historical lack of clarity as to what the scope and limits of recess appointments are. When both houses agree to adjourn and hold themselves in recess, the president’s power to make such appointments is unquestioned. But it is certainly unclear that it is constitutional for the Senate to adjourn sine die for weeks at a time, except for pro forma sessions at which no business is conducted and no quorum is present, in order to specifically impede the president’s recess appointment powers.
Whatever the actual practice has been in terms of when presidents made recess appointments, or whether presidents in the past have accepted the practice of pro forma sessions, or even whether someone argued a different view about such appointments in the past, is entirely irrelevant. It might be instructive to know these things in order to make personal judgments about the character of the respective parties, but it has nothing whatsoever to do with the constitutional issues at hand.
The only relevant questions are, is the Senate in session or is it not? Is the Senate in session when no quorum is present, the members are not available to meet, and no business is conducted for weeks? Is the Senate in session when it is incapable of providing the advice and consent function for weeks? If the answer to those questions is "no", then the Senate is in recess as a practical matter and pro forma "sessions" are nothing more than a sham with but one design: to subvert the Constitution. That is true whether the president is George W. Bush or Barack H. Obama.
Update: Commenter Pogue Mahone notes another Congressional Research Service opinion (PDF) that specifically states the initial appointment of the CFPB director can, in fact, be made via recess appointment:
"P.L. 111-203 § 1011. Although the CFP Act requires the CFPB Director to be confirmed by the Senate, the President could appoint a Director temporarily without Senate confirmation through his constitutionally provided power to make recess appointments. See U.S. Const., art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). A recess-appointed Director likely would be considered to have all of the authorities that would be held by a Senate-confirmed Director.
I have, however, seen other legal analyses that say otherwise. Note the word "likely" in the last sentence, above.
Again, my argument is not that the president can’t appoint the director via recess appointment, but that it can be argued the agency’s powers can’t be transferred to the CFPB until the statutory requirement is satisfied. He can be appointed the director of all he surveys, and still have no legal power, no salary, and no agency until the letter of Dodd-Frank is satisfied. The treasury Department could whip him up some spiffy business card, though. Unless congress defunds that, too. That’s a possibility some legal scholars are arguing, anyway.
I think, however, CRS opinion is correct. The "advice and consent" phrase is pretty pro forma, and reflects the usual nomination/confirmation process, rather than setting up a specific ban on the recess appointment. Certainly, I’d presume the Constitutional recess appointment power would trump the statutory language. It’s amusing to ponder, but it seems pretty clear that a recess appointment to a non-existent position is effectively no appointment at all. Not that there wouldn’t be plenty of lawyers happy to argue otherwise.
Its been something that all recent modern presidents have had to go through – nominees for office have been held up or blocked by the legislative branch in their “advise and consent” role for various reasons. Frankly, I’ve been of the opinion that leaders should be able, within reason obviously, to appoint who they wish to political positions their election entitles them to fill. Elections have consequences.
However that’s not the reality of the situation, is it? Both sides play this game. And believe it or not there are “rules” or precedence which guides even this process.
One of the things that has become crystal clear is that despite all the previous rhetoric from then candidate Obama about the “executive president” and how George W Bush was abusing his power, Obama the president has no qualms about doing what Bush did and more.
Signing statements, something Obama condemned on the way to the White House, are now routine for the Obama administration.
As for these most recent recess appointment? Well, it’s a matter of timing, and again this administration has decided it will simply do what it wishes, regardless of the law:
Obama infuriated Republicans Wednesday by announcing the recess appointment of Richard Cordray to be the first director of the Consumer Financial Protection Bureau (CFPB). Senate Republicans had blocked Cordray’s nomination for months, so the president bypassed them with a recess appointment during the holiday break.
He followed that up later in the day with recess appointments for three members of the National Labor Relations Board (NLRB), heading off another likely GOP filibuster.
The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.
These are the same White House attorneys who also previously said just the opposite. Jim Treacher brings us up to date:
But the appointments may have been illegal, according to past administration statements. Obama’s own lawyers publicly stated in a 2010 exchange with Supreme Court Chief Justice John Roberts that the president doesn’t consider a congressional recess official — meaning he can’t legally exercise his recess appointment power — until Congress has been gone for three full days. ‘The recess appointment power can work in — in a recess,’ Obama’s Deputy Solicitor General Neal Katyal said. ‘I think our office has opined the recess has to be longer than three days [to make an appointment].’ The Senate entered a recess on Tuesday, after having held a pro forma session to keep Obama from making any recess appointments. Another was planned for Friday. By making the appointments just one day after the Senate went into a recess, Obama appears to breaking his own administration’s rules and, as scores of Republicans are quick to point out, decades of executive precedent."
And, of course, the usual hypocrisy is afoot:
According to The Hill, Obama’s move breaks from 20 years of precedent while violating a policy established under fellow Democrat and former President Bill Clinton’s administration.
During the Bush administration, Senate Majority Leader Harry Reid denounced recess appointments and conducted the same pro forma Senate sessions. It’s unclear what, if anything, Reid will say or do about Obama exhibiting a disregard for his advice.
In an update, Treacher reports:
Reid has backed Obama’s decision to make the recess appoints, contradicting his previous arguments about how recess appointments are “mischievous.” A spokesperson for Reid didn’t immediately return The Daily Caller’s request for comment on whether Reid has a new, enlightened argument or is just playing partisan politics to help Obama.
I’m sure Majority Leader Reid has a splendid explanation for now saying precisely the opposite of what he was saying under a GOP administration while he held the same position.
Nothing like the rule of men instead of the rule of law, no?
It makes life so … interesting, doesn’t it?
As for the Constitution, it is now available in the White House shop in convenient toilet paper rolls.
Gangs of anything are rarely good things. And when it comes to the Senate’s Gang of Six, that caution is doubly true. Today the Gang proposed a bipartisan deficit plan to which the president–eager to kick the deficit can down the road past the 2012 election–gave his qualified approval. There is only this summary (PDF) available at the moment, and there is much to digest.
The good news is that there is at least some sanity in it.
- Personal and corporate income taxes would be reduced to a top rate of 29%.
- The Alternative Minimum Tax–which has turned into a horrific taxation burden–will be eliminated.
- The CLASS Act provision of Obamacare would be repealed.
The bad news–and there’s always bad news with these guys–is that the budget reduction portion of it is notional. As usual in Washington, it calls “cuts” what the rest of us would call “reductions in the rate of spending increases”. In other words, spending isn’t actually reduced at any point, they just promise not to spend as much as they previously said they would. The main problem points include:
- None of the plan’s “spending caps” apply to entitlement programs, only discretionary spending. So the 800-pound gorilla of the budget remains untouched.
- Reform tax expenditures for health, charitable giving, homeownership, and retirement. These aren’t expenditures! They are allowing you to keep your money for IRAs, 401(k)s, Mortgage interest, etc. So, that sounds…ominous. Especially since the plan assumes that these, and similar reforms will net an additional $1 trillion in revenue.
- No reform at all of Medicare of Medicaid.
- A politically-imposed requirement to use the Chained-CPI as an inflation measure, presumably to cut down on cost-of-living increases, as the Chained-CPI understates inflation even more than the current CPI does.
- Requires the tax code to become more “progressive”, so you can expect serious increases in Capital Gains taxes.
- No Social Security reform at all, unless there’s 60 votes for it in the Senate, i.e., sponsors for such reform prior to its submittal to the Senate for consideration. So, essentially, never.
There’s no information at all on how big or expensive government will be, say 10 years down the road. No information on how strict the spending caps will be, making me expect another Gramm-Rudmann deal: Good on paper, ineffective in practice.
Basically, this plan, so far as I can tell, contains some eye-candy on income taxes to draw in the supply-siders, with the actual deficit reduction portion sounding…sketchy. Or in the case of entitlements, by far the source of most federal spending, non-existent.
Well of course they do – it gives power to the minority and prevents them from running roughshod over that minority as they attempt to push their agenda through the Senate (as is pretty much done in the House). That said, I don’t have a problem with this:
Among the chief revisions that Democrats say will likely be offered: Senators could not initiate a filibuster of a bill before it reaches the floor unless they first muster 40 votes for it, and they would have to remain on the floor to sustain it. That is a change from current rules, which require the majority leader to file a cloture motion to overcome an anonymous objection to a motion to proceed, and then wait 30 hours for a vote on it.
“There need to be changes to the rules to allow filibusters to be conducted by people who actually want to block legislation instead of people being able to quietly say ‘I object’ and go home,” said Sen. Claire McCaskill, D-Mo.
This year, McCaskill lined up backing from more than two-thirds of senators for elimination of secret holds, which allow a senator to block action on a bill or nomination anonymously. She said that Democrats will also push plans to force senators who place holds to do it publicly.
I think that "secret holds" are anathema to open government. If a Senator objects, he or she should take ownership of that objection and have to do so publicly. That’ll take care of some of the petty nonsense that is fairly routine in those sorts of holds. But:
Adding to the momentum for change, say proponents, is a push by Udall to seek a simple majority vote on changing Senate rules at the start of the session, rather than a two-thirds majority, that is gaining steam. Such a move could come at the start of next Congress, shortly after the Senate returns on January 5th.
Uh, no. Supermajority means you have to convince the minority of the efficacy of the changes. One of the reason it is so important to have the minority retain its power was illustrated in the defeat of the 1.2 trillion dollar pork package called the "Omnibus spending bill". The minority was able to kill it. I understand that really has no bearing on an internal rule change to go to a simple majority vote to make rule changes, but as with all things, that means Democrats wouldn’t have to have a single minority vote to change the rules.
I say "no way". One of the most powerful and moderating things about the Senate is it almost forces negotiation with the minority before it can accomplish anything. I wonder if the "No Labels" crew will be coming out with a statement saying "keep the rules that protect the minority in the Senate". Yeah, I doubt it too.
Filibuster reform in the way McCaskill is pushing for (no more secret holds) is a good thing I think. The time change to less than 30 hours on the motion to proceed is no big deal. Changing the rule on the number of votes necessary to change the rules – i.e. go from a supermajority to a simple majority – is not a good thing and should be rejected.
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