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08.10.11

Obama’s Congressional Test

If Obama wants to show he’s grown a backbone, he should force Congress into recess and make appointments that Republicans have been blocking, says Michael Tomasky.

I’ve been wondering lately the same thing as a lot of liberals in Washington: when and how will the president ever grow some backbone? Sure, the post-debt-deal polls show that he came out of the mess looking somewhat less terrible than the Republicans. But he looks weak, and he’ll keep getting pushed around until he throws down on something. I’m planning an occasional series about what that something could be, and here’s idea No. 1: force the Congress into recess and make a slew of appointments.

What? Force the Congress into recess? Yes. The president has the power under the Constitution to do exactly that. Read Article II, which is, of course, on the executive branch, Section 3, titled “State of the Union, Convening Congress.” It states in full about the president that:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

“[H]e may adjourn them to such Time as he shall think proper.” Of course, there are caveats. First, it must be an extraordinary occasion. Second, the two houses of Congress must disagree about the time of adjournment. Both can be finessed. On the first point, Obama can actually reasonably argue that the number of presidential appointments held up by Republicans (we’ll get to the numbers in a minute) is so large as to constitute an extraordinary circumstance. On the second, all that would take is for the Democratic-controlled Senate to force a “disagreement” with the House about when Congress should adjourn.

Too clever by half? Dirty pool? No cleverer or dirtier than what’s been going on with presidential appointments, which is a scandal and disgrace and gets almost no media attention. In May, the Congressional Research Service released a report showing the following: CRS estimates that the total number of presidential appointments subject to Senate confirmation is around 1,200. During the 111th Congress (2009–10), Obama issued 964 nominations. During the current 112th Congress, he’s made 174.

During the previous Congress, the percentage appointed was high—the Senate passed through 843 nominees, or 87 percent. But that, remember, was a Congress in which Democrats had 60 votes, so filibustering nominees was harder for the minority (although, of course, individual senators can place holds on nominations, which probably accounts for the bulk of the 13 percent failure rate). With that in mind, look at this Congress, in which the Republican majority can easily mount a filibuster. In this Congress, the Senate has passed just 27 nominees, or an absurd 16 percent (through May).

We are all familiar with the high-profile cases, like that of Peter Diamond, the nominee to the Federal Reserve Board whom GOP Sen. Richard Shelby has found lacking even though he has a Nobel Prize in his pocket. We also have no Commerce secretary, no ambassador to the modestly important country of China, and no head of the Consumer Financial Protection Bureau (CFPB). And the truth is we never will, at least through 2012. They’re dead. The Republicans will be sure to keep especially the CFPB (the most important new regulatory agency created in years) headless until the day they have the votes to kill it outright.

If Obama invoked his constitutional power for a change, conservatives would howl, but liberals would be enraptured, and independents would note that he finally took a stand.

But there are dozens of non-headline-worthy positions of importance in all agencies. Will the world keep turning if they’re not filled? Sure. But is keeping them unfilled a penumbral part of the GOP plan to keep regulators’ fingers out of corporate America’s pie and continue the steady reduction of federal reach and power? Of course it is. We’re at a crisis point. Obama should say something. I shook my head in despair last month as the president nominated Richard Cordray to head the CFPB. Obama gave a speech like these were normal times, even though he had to know full well that Cordray will never set foot in that office. It was a joke.

But imagine the Obama who invoked his constitutional power for a change, forced a congressional adjournment, and put Cordray—and a hundred other appointees doing the limbo—to work? Conservatives would howl that he was behaving like a dictator. But liberals would be enraptured, and I feel certain that most independents would be impressed that the guy finally drew a line in the sand over something. An Obama who did that would light this town up, and he’d be making a stand that would serve not only him well but also future occupants of his office of both parties (which is how he could package it in keeping with his post-partisan daydreams). Which raises an important point: a president doesn’t end partisan gridlock by letting the other party steamroll him. He ends partisan gridlock by trying to banish a practice that has become the epitome of partisan gridlock. It’s really not that complicated.