01/03/2012 archive

Congressional Game of Chicken: Presidential Recess Appointments Opportunity Missed

The pro forma congressional session that are being used to prevent President Obama from making recess appointments has been much discussed here and at other sites like FireDogLake and Talking Points Memo. It has also been argued by Constitutional scholars that they are little more “than a game of separation-of-powers chicken”. They have been used to keep the president from filling vacancies in the courts and in his administration that are vital to the operation of the government. These sessions and the president’s reluctance to challenge their constitutional legality has kept Elizabeth Warren from being appointed to head the new Consumer Financial Protection Bureau and a Nobel winning economist, Richard Diamond from a seat on the Federal Reserve.

Once a the president missed an opportunity to put an end to Republican obstruction and make important appointments, like Richard Cordray to the CFPB and the vacancies on the National Labor Relations Board. President Obama has a number of options available under the Constitution to bypass congress and make these appointments, as  David Dayen at FDL News Deskpoint out:

During the recess, the President has a number of opportunities to make recess appointments. He could simply determine that the pro forma sessions being used to keep Congress active were insufficient to prevent recess appointments. He could use his Constitutional power to adjourn Congress. But both of those would fly in the face of recent precedent (Presidents have generally respected the pro forma process, and no President has actually used the adjournment power.)

The one option with Presidential precedent behind it was the “Roosevelt precedent.” Congress simply has to adjourn for a short period, a split second really, to shift from the first session of the 112th Congress to the second session. In that window, Theodore Roosevelt made hundreds of recess appointments previously.

Victor Williams, Assistant Professor at the Catholic University of America School of Law and an attorney, writing in the Huffington Post last week urged Obama to put an end to the “myth” that an official congressional recess lasts three days or more and the Republicans’ de facto “nullification” of government:

As the 112th Senate left for its break, Minority Leader Mitch McConnell unsuccessfully attempted to wrangle a recess concession from Obama. McConnell demanded that Obama promise not to sign any recess commissions during the holidays. McConnell blocked a confirmation vote for 50 officials when Obama ignored the Article II, Section 2 shake down.

Adding insult to constitutional injury, congressional Republicans again manipulated the Senate into scheduling 10 pro-forma sessions — intending to interfere with Obama’s recess appointment authority. (As I argued in recent Jurist commentary, in prior posts, and a National Law Journal opinion, the sessions do not prevent the Executive from signing recess commissions.)

Prof. Williams goes on, laying out all the president’s options urging him that the better option would be to invoke Article II, Section 2 which states, “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,” after the start of the new session of the 112th Congress which began today at 12:01 PM EST:

Recess commissions signed before the end of the 112th Senate’s first session — Jan. 3, 2012 at 12 p.m. — last through 2012. However, recess commissions better-timed to be signed instantly at noon (or anytime after the second session formally begins) last through 2013. The officials could then be re-recess appointed during Obama’s second term.

In a time and place of his choosing, Barack Obama should use the Article II, Section 2 recess appointment alternative. President Obama should concurrently renounce the three day recess myth underlying Senate pro forma sessions announcing a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.

But according to Brian Buetler at TPM, legal experts believe that today was the last opportunity for Obama to use the “Roosevelt precedent”:

Today was the day that legal experts and many aides in both parties thought President Obama would provide a recess appointment to Richard Cordray, his nominee to administer the new Consumer Financial Protection Bureau […]

But a senior administration official who would not be quoted told reporters at a White House background briefing Tuesday that Obama will not take advantage of that opening.

The official declined to provide further explanation, but the decision implies one of three things: that Obama does not believe he’s encumbered by technical restrictions on his power to recess appoint nominees and can still act between now and late January when Senators return to town; that he will instead wait until a future recess when feels he has more running room and political capital to recess appoint Cordray and others; or that he has no intention of challenging Congressional Republicans by making further recess appointments between now and the end of this Congress.

So by not taking advantage of the ‘Roosevelt precedent”, will Obama go where no president has gone before and invoke Article II, Section 2? Or will he continue on the more predictable path of allowing the minority in the Senate to obstruct his agenda?

I’m opting for the latter. Fool me, Barry.

Supply and Demand

The key problem in Academic Economics at the moment is that it’s been replaced by tortoise shell shaking Shamen muttering mystical protestations of faith in the cult worship of Mammon by fairy believing fools.

The Misinformation Around Debt

By: David Dayen, Firedog Lake

Monday January 2, 2012 10:15 am

(T)he key problem for US debt at the moment is that there won’t be enough of it to meet current demand. Choppy waters elsewhere have made US Treasuries, the same ones supposedly downgraded by Standard and Poor’s, perceived as the safest financial instrument in the world. Treasuries sold at a higher pace than anytime since 1995. Government could finance at a negative long-term interest rate. The markets want the government to borrow more so they can get their hands on more Treasuries. This will also likely increase economic performance, improving yields across the board.

Nobody Understands Debt


Published: January 1, 2012

It’s true that foreigners now hold large claims on the United States, including a fair amount of government debt. But every dollar’s worth of foreign claims on America is matched by 89 cents’ worth of U.S. claims on foreigners. And because foreigners tend to put their U.S. investments into safe, low-yield assets, America actually earns more from its assets abroad than it pays to foreign investors. If your image is of a nation that’s already deep in hock to the Chinese, you’ve been misinformed. Nor are we heading rapidly in that direction.

Washington isn’t just confused about the short run; it’s also confused about the long run. For while debt can be a problem, the way our politicians and pundits think about debt is all wrong, and exaggerates the problem’s size.

(W)hen people in D.C. talk about deficits and debt, by and large they have no idea what they’re talking about – and the people who talk the most understand the least.

Perhaps most obviously, the economic “experts” on whom much of Congress relies have been repeatedly, utterly wrong about the short-run effects of budget deficits. People who get their economic analysis from the likes of the Heritage Foundation have been waiting ever since President Obama took office for budget deficits to send interest rates soaring. Any day now!

And while they’ve been waiting, those rates have dropped to historical lows. You might think that this would make politicians question their choice of experts – that is, you might think that if you didn’t know anything about our postmodern, fact-free politics.

Clap louder.  LOUDER!!!

What is it about loud that you don’t understand?

Punting the Pundits

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Jonathan Turley: The NDAA’s Historic Assault on American Liberty

By signing into law the NDAA, the president has awarded the military extraordinary powers to detain US citizens without trial

President Barack Obama rang in the New Year by signing the NDAA law with its provision allowing him to indefinitely detain citizens. It was a symbolic moment, to say the least. With Americans distracted with drinking and celebrating, Obama signed one of the greatest rollbacks of civil liberties in the history of our country … and citizens partied in unwitting bliss into the New Year.

Ironically, in addition to breaking his promise not to sign the law, Obama broke his promise on signing statements and attached a statement that he really does not want to detain citizens indefinitely (see the text of the statement here).

Obama insisted that he signed the bill simply to keep funding for the troops. It was a continuation of the dishonest treatment of the issue by the White House since the law first came to light. As discussed earlier, the White House told citizens that the president would not sign the NDAA because of the provision. That spin ended after sponsor Senator Carl Levin (Democrat, Michigan) went to the floor and disclosed that it was the White House and insisted that there be no exception for citizens in the indefinite detention provision.

Jim Hightower: Shoveling America’s Wealth to the Top

As an old country saying puts it, “Money is like manure – it does no good unless you spread it around.”

Yet America’s corporate and political leaders have intentionally been shoveling wealth into an ever-bigger pile for those at the top. They’ve gotten away with this by lying to the great majority, which has seen its share of America’s prosperity steadily disappear. Yes, they’ve told us, the rich are getting richer, but that’s just the natural workings of the new global economy, in which financial elites are rewarded for their exceptional talents, innovation, and bold risk-taking.

Robert Kuttner: Social Security: Secure with Obama?

The Republicans handed President Obama a nice tactical victory when they caved in just before Christmas and agreed to extend the payroll tax cut on Obama’s terms (with no offsetting program cuts.) But the extension deal is only for two months, which means the battle will be fought all over again in February.

You could say this is double-stupidity on the Republicans’ part, since the public will be treated yet again to a debate in which the Democrats want to tax millionaires in order to spare working people a tax hike, while Republicans defend the very rich and demand further cuts in valued programs as the price of avoiding a tax increase on ordinary Americans.

But maybe it’s Democrats who have set themselves a trap. Some Social Security advocates contend that Obama’s nice partisan victory is hollow if not Pyrrhic.

The New York Times Editorial: The Slush Funds of Iowa

Turning on the television in Iowa recently has meant getting hit by an unrelenting arctic blast of campaign ads stunning in volume and ferocity. Residents here say they have never seen anything like the constant negativity in decades of witnessing the quadrennial combat of the state presidential caucuses. The ads have transformed the Republican race for a simple reason: a new landscape of unlimited contributions to “independent” groups that was created by the Supreme Court.

To influence the small fraction of Iowa voters who will participate in Tuesday’s caucuses, the candidates and their supporters will have spent $12.5 million, an unprecedented amount. Only a third of that was spent by the candidates themselves; the rest comes from the “super PACs” that most of the candidates have allowed to be established. These political action committees are essentially septic tanks into which wealthy individuals and corporations can drop unlimited amounts of money, which is then processed into ads that are theoretically made independently of the candidates.

Simon Johnson: Austerity and the Modern Banker

Washington, DC – Santa Claus came early this year for four former executives of Washington Mutual (WaMu), a large US bank that failed in fall 2008. The Federal Deposit Insurance Corporation (FDIC) had brought a lawsuit against the four, actions that included taking huge financial risks while “knowing that the real estate market was in a ‘bubble.'” The FDIC sought to recover $900 million, but the executives have just settled for $64 million, almost all of which will be paid by their insurers; their out-of-pockets costs are estimated at just $400,000.

To be sure, the executives lost their jobs and now must drop claims for additional compensation. But, according to the FDIC, the four still earned more than $95 million from January 2005 through September 2008. So they are walking away with a great deal of cash. This is what happens when financial executives are compensated for “return on equity” unadjusted for risk. The executives get the upside when things go well; when the downside risks materialize, they lose nothing (or close to it).

John Nichols: Six Ways Iowa Progressives Will Caucus

But what is the point of progressives caucusing on Tuesday?

Actually, there are a lot of points to be made, even if most of the media is missing them.

The Republicans who are competing to be the candidate of the 1 Percent will get 99 Percent of the media attention that is devoted to the Iowa caucuses. But some of the most exciting activity with regard to the caucuses is not on the right, it’s on the left.

Iowa progressives are organizing on a variety of fronts to raise issues, upset expectations and challenge the Republican and Democratic game plans for Tuesday night.

Both the Republican and the Democratic parties will begin their delegate-selection processes in Iowa, although the two party caucuses do not operate according to the same rules. The Republicans hold a straw poll that will get most of the attention once the results are in Tuesday night, especially if a surging Rick Santorum elbows his way into a first- or second-place finish. The Democrats hold more traditional “town-meeting” style caucuses, and in many cases they may be little more than groundwork-laying events for President Obama’s reelection campaigns. But that will not be the case at every Democratic caucus, just as there will be surprises at GOP gatherings.

The Paul Puzzle

As we head into the Iowa Caucuses Ron Paul seems more popular than ever and there is at least an even chance he’ll pull off an upset victory.

I’ve drawn your attention to some of the deep philosophical problems with Libertarianism (C’thulhu fhtagn), but recognizing those leaves open the question- just what is so appealing about Ron Paul?

There are those who will argue that his appeal to the Tea Party crowd is based on his history of racism, but instead I would argue that it’s the result of his ‘principled’ stands in favor of individual rights and the populist perception that he is not beholden to the corporatist status quo (though reading the citations in my earlier piece should disabuse you of the notion that the Libertarian future is any less driven by mega corporations, greed and power).

It is indeed this perception of populism that gives him ‘crossover’ appeal to Independents and Liberals.  Remember, Independents are anything BUT ‘Swing Voters’.  An overwhelming majority are disaffected from one branch or the other of our two headed hydra duopoly.

Glenn Greenwald and Matt Stoller have recently published some pieces examining this phenomena.

Progressives and the Ron Paul fallacies

Glenn Greenwald, Salon

Saturday, Dec 31, 2011 11:15 AM

The worst attributes of our political culture – obsession with trivialities, the dominance of horserace “reporting,” and mindless partisan loyalties – become more pronounced than ever. Meanwhile, the actually consequential acts of the U.S. Government and the permanent power factions that control it – covert endless wars, consolidation of unchecked power, the rapid growth of the Surveillance State and the secrecy regime, massive inequalities in the legal system, continuous transfers of wealth from the disappearing middle class to large corporate conglomerates – drone on with even less attention paid than usual.

Because most of those policies are fully bipartisan in nature, the election season – in which only issues that bestow partisan advantage receive attention – places them even further outside the realm of mainstream debate and scrutiny.

(T)here’s the inability and/or refusal to recognize that a political discussion might exist independent of the Red v. Blue Cage Match. Thus, any critique of the President’s exercise of vast power (an adversarial check on which our political system depends) immediately prompts bafflement (I don’t understand the point: would Rick Perry be any better?) or grievance (you’re helping Mitt Romney by talking about this!!). The premise takes hold for a full 18 months – increasing each day in intensity until Election Day – that every discussion of the President’s actions must be driven solely by one’s preference for election outcomes (if you support the President’s re-election, then why criticize him?).

(H)ere’s the Publisher of The Nation praising Ron Paul not on ancillary political topics but central ones (“ending preemptive wars & challenging bipartisan elite consensus” on foreign policy), and going even further and expressing general happiness that he’s in the presidential race. Despite this observation, Katrina vanden Heuvel – needless to say – does not support and will never vote for Ron Paul (indeed, in subsequent tweets, she condemned his newsletters as “despicable”). But the point that she’s making is important, if not too subtle for the with-us-or-against-us ethos that dominates the protracted presidential campaign: even though I don’t support him for President, Ron Paul is the only major candidate from either party advocating crucial views on vital issues that need to be heard, and so his candidacy generates important benefits.

Whatever else one wants to say, it is indisputably true that Ron Paul is the only political figure with any sort of a national platform – certainly the only major presidential candidate in either party – who advocates policy views on issues that liberals and progressives have long flamboyantly claimed are both compelling and crucial. The converse is equally true: the candidate supported by liberals and progressives and for whom most will vote – Barack Obama – advocates views on these issues (indeed, has taken action on these issues) that liberals and progressives have long claimed to find repellent, even evil.

The simple fact is that progressives are supporting a candidate for President who has done all of that – things liberalism has long held to be pernicious. I know it’s annoying and miserable to hear. Progressives like to think of themselves as the faction that stands for peace, opposes wars, believes in due process and civil liberties, distrusts the military-industrial complex, supports candidates who are devoted to individual rights, transparency and economic equality. All of these facts – like the history laid out by Stoller in that essay – negate that desired self-perception. These facts demonstrate that the leader progressives have empowered and will empower again has worked in direct opposition to those values and engaged in conduct that is nothing short of horrific. So there is an eagerness to avoid hearing about them, to pretend they don’t exist. And there’s a corresponding hostility toward those who point them out, who insist that they not be ignored.

The parallel reality – the undeniable fact – is that all of these listed heinous views and actions from Barack Obama have been vehemently opposed and condemned by Ron Paul: and among the major GOP candidates, only by Ron Paul. For that reason, Paul’s candidacy forces progressives to face the hideous positions and actions of their candidate, of the person they want to empower for another four years. If Paul were not in the race or were not receiving attention, none of these issues would receive any attention because all the other major GOP candidates either agree with Obama on these matters or hold even worse views.

Progressives would feel much better about themselves, their Party and their candidate if they only had to oppose, say, Rick Perry or Michele Bachmann. That’s because the standard GOP candidate agrees with Obama on many of these issues and is even worse on these others, so progressives can feel good about themselves for supporting Obama: his right-wing opponent is a warmonger, a servant to Wall Street, a neocon, a devotee of harsh and racist criminal justice policies, etc. etc. Paul scrambles the comfortable ideological and partisan categories and forces progressives to confront and account for the policies they are working to protect. His nomination would mean that it is the Republican candidate – not the Democrat – who would be the anti-war, pro-due-process, pro-transparency, anti-Fed, anti-Wall-Street-bailout, anti-Drug-War advocate (which is why some neocons are expressly arguing they’d vote for Obama over Paul). Is it really hard to see why Democrats hate his candidacy and anyone who touts its benefits?

Paul’s candidacy forces those truths about the Democratic Party to be confronted. More important – way more important – is that, as vanden Heuvel pointed out, he forces into the mainstream political discourse vital ideas that are otherwise completely excluded given that they are at odds with the bipartisan consensus.

There are very few political priorities, if there are any, more imperative than having an actual debate on issues of America’s imperialism; the suffocating secrecy of its government; the destruction of civil liberties which uniquely targets Muslims, including American Muslims; the corrupt role of the Fed; corporate control of government institutions by the nation’s oligarchs; its destructive blind support for Israel, and its failed and sadistic Drug War. More than anything, it’s crucial that choice be given to the electorate by subverting the two parties’ full-scale embrace of these hideous programs.

Can anyone deny that (a) those views desperately need to be heard and (b) they are not advocated or even supported by the Democratic Party and President Obama? There are, as I indicated, all sorts of legitimate reasons for progressives to oppose Ron Paul’s candidacy on the whole. But if your only posture in the 2012 election is to demand lockstep marching behind Barack Obama and unqualified scorn for every other single candidate, then you are contributing to the continuation of these policies that liberalism has long claimed to detest, and bolstering the exclusion of these questions from mainstream debate.

If you’re someone who is content with the Obama presidency and the numerous actions listed above; if you’re someone who believes that things like Endless War, the Surveillance State, the Drug War, the sprawling secrecy regime, and the vast power of the Fed are merely minor, side issues that don’t merit much concern (sure, like a stopped clock, Paul is right about a couple things); if you’re someone who believes that the primary need for American politics is just to have some more Democrats in power, then lock-step marching behind Barack Obama for the next full year makes sense.

But if you don’t believe those things, then you’re going to be searching for ways to change mainstream political discourse and to disrupt the bipartisan consensus which shields these policies from all debate, let alone challenge. As imperfect a vehicle as it is, Ron Paul’s candidacy – his success within a Republican primary even as he unapologetically challenges these orthodoxies – is one of the few games in town for achieving any of that (now that Johnson has left the GOP and will [likely] run as the Libertarian Party candidate, perhaps he can accomplish that as well).

Matt Stoller: Why Ron Paul Challenges Liberals

Matt Stoller, Naked Capitalism

Thursday, December 29, 2011

Modern liberalism is a mixture of two elements. One is a support of Federal power – what came out of the late 1930s, World War II, and the civil rights era where a social safety net and warfare were financed by Wall Street, the Federal Reserve and the RFC, and human rights were enforced by a Federal government, unions, and a cadre of corporate, journalistic and technocratic experts (and cheap oil made the whole system run.) America mobilized militarily for national priorities, be they war-like or social in nature. And two, it originates from the anti-war sentiment of the Vietnam era, with its distrust of centralized authority mobilizing national resources for what were perceived to be immoral priorities. When you throw in the recent financial crisis, the corruption of big finance, the increasing militarization of society, Iraq and Afghanistan, and the collapse of the moral authority of the technocrats, you have a big problem. Liberalism doesn’t really exist much within the Democratic Party so much anymore, but it also has a profound challenge insofar as the rudiments of liberalism going back to the 1930s don’t work.

This is why Ron Paul can critique the Federal Reserve and American empire, and why liberals have essentially no answer to his ideas, arguing instead over Paul having character defects. Ron Paul’s stance should be seen as a challenge to better create a coherent structural critique of the American political order. It’s quite obvious that there isn’t one coming from the left, otherwise the figure challenging the war on drugs and American empire wouldn’t be in the Republican primary as the libertarian candidate. To get there, liberals must grapple with big finance and war, two topics that are difficult to handle in any but a glib manner that separates us from our actual traditional and problematic affinity for both. War financing has a specific tradition in American culture, but there is no guarantee war financing must continue the way it has. And there’s no reason to assume that centralized power will act in a more just manner these days, that we will see continuity with the historical experience of the New Deal and Civil Rights Era. The liberal alliance with the mechanics of mass mobilizing warfare, which should be pretty obvious when seen in this light, is deep-rooted.

What we’re seeing on the left is this conflict played out, whether it is big slow centralized unions supporting problematic policies, protest movements that cannot be institutionalized in any useful structure, or a completely hollow liberal intellectual apparatus arguing for increasing the power of corporations through the Federal government to enact their agenda. Now of course, Ron Paul pandered to racists, and there is no doubt that this is a legitimate political issue in the Presidential race. But the intellectual challenge that Ron Paul presents ultimately has nothing to do with him, and everything to do with contradictions within modern liberalism.

I would argue with Glenn about the deprivation of essential liberty being limited to Muslims-

First they came for the communists,

and I didn’t speak out because I wasn’t a communist.

On this Day In History January 3

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 3 is the third day of the year in the Gregorian calendar. There are 362 days remaining until the end of the year (363 in leap years). The Perihelion, the point in the year when the Earth is closest to the Sun, occurs around this date.

On this day in 1938, The March of Dimes is established by President Franklin D. Roosevelt.

March of Dimes is an American health charity whose mission is to improve the health of babies by preventing birth defects, premature birth, and infant mortality.

Polio was one of the most dreaded illnesses of the 20th century, and killed or paralyzed thousands of Americans during the first half of the 20th century. In response, President Franklin D. Roosevelt founded the March of Dimes as the National Foundation for Infantile Paralysis on January 3, 1938. Roosevelt himself was paralyzed with what at the time was believed to be polio, though recent examination has led some to suggest that this diagnosis might have been mistaken. The original purpose of the Foundation was to raise money for polio research and to care for those afflicted with the disease. The name emphasized the national, nonpartisan, and public nature of the new organization, as opposed to private foundations established by wealthy families. The effort began with a radio appeal, asking everyone in the nation to contribute a dime (ten cents) to fight polio.

“March of Dimes” was originally the name of the annual fundraising event held in January by the Foundation. The name “March of Dimes” for the fundraising campaign was coined by entertainer Eddie Cantor as a play on the popular newsreel feature of the day, The March of Time. Along with Cantor, many prominent Hollywood, Broadway, radio, and television stars served as promoters of the charity. When Roosevelt died in office in 1945, he was commemorated by placing his portrait on the dime. Coincidentally, this was the only coin in wide circulation which had a purely allegorical figure (Liberty) on the obverse. To put Roosevelt on any other coin would have required displacing a president or founding father.

Over the years, the name “March of Dimes” became synonymous with that of the charity and was officially adopted in 1979.