More than anything else, the ruling that the Obama administration overstepped its authority in making recess appointments while Congress was still in session documents how American government is failing in some of its most basic tasks.
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled last week that the administration’s appointment of three members of the National Labor Relations Board was unconstitutional. The administration plans to appeal the ruling.
President Obama made what are known as “recess appointments,” in which a president makes appointments when the Senate is on break. In the modern presidency, they have mainly been used to get around the Senate when it blocks consideration of certain appointments, including judges. Ronald Reagan, a master of the recess appointment, used it 243 times.
Things changed during the administration of George W. Bush. Although he made 105 recess appointments, Senate Democrats began the charade of holding pro-forma sessions, technically keeping the Senate in session even though no real work was being done.
Republicans are now doing the same to Obama. In an effort to thwart his agenda, they blocked consideration of his appointments to the NLRB and also of Richard Cordray to head the newly created Consumer Financial Protection Bureau. That appointment is the subject of a separate lawsuit. Obama decided to challenge the long-standing practice and made the appointments. Republicans sued and, on Friday, the court agreed with them.
But what the court has said in effect is that presidents are helpless in the face of gross congressional manipulation of procedures meant to make the government function. It means that no president can ever be sure of having any appointment even considered unless his party controls at least 60 Senate seats, the number needed to choke off filibusters.
Obviously, this is not simply a Republican problem. The GOP learned at the feet of Democrats when Bush was president. It’s the kind of behavior that has led Congress into a shocking level of disrepute among Americans. Its favorability rating is 9 percent and, according to a new survey by Public Policy Polling of North Carolina, Americans despise Congress more than cockroaches, head lice and replacement referees in the NFL. It did come out ahead of gonorrhea, though.
It was an amusing way to document Americans’ profound disdain for Congress, but in the end, it’s not funny. Government cannot function if partisanship is allowed to hinder even the rudimentary requirements of filling important positions.
But that’s what happens. Republicans don’t like the idea of the Consumer Financial Protection Board, so they hoped to block it from acting by preventing it from having a leader. This can’t continue.
Obama is wise to pursue this matter. Neither Democrats nor Republicans should be allowed to pretend Congress is in session to avoid the use of recess appointments. That’s where the immediate problem lies.
More fundamental, though, is the unwillingness of Congress to allow presidents of the opposing party to do the job to which they were elected. The Senate should allow an up-or-down vote on presidential appointees. That’s what needs to be fixed and, sadly, the courts have no influence there.