Tag: Congressional Game of Chicken

Back in October, I wrote this article, Separation of Powers Game of Chicken, which discussed the use of pro forma sessions to block the president from making recess appointments. The reason I’m resurrecting this discussion is that Senate Majority Leader Harry Reid has scheduled these pro forma sessions over the holiday weekend to prevent President Obama from appointing Elizabeth Warren as head of the Consumer Financial Protection Board over the objections of Republicans. As with the blocking of Richard Diamond, an eminently qualified Nobel economist, to the Board of Directors of the Federal Reserve, it is Sen. Richard “no” Shelby (R-AL) who has said he will put a hold on Dr. Warren’s appointment if the president nominates her.

Republicans used the threat of a procedural blockade to make sure President Barack Obama wouldn’t be able to make recess appointments while the U.S. Senate is on a break next week, including naming Elizabeth Warren to head the Consumer Financial Protection Bureau.

Instead of allowing all senators and their staffs to leave Washington, Majority Leader Harry Reid scheduled “pro forma” sessions, in which the chamber officially opens for the day, then gavels to a close right away. That can be handled by two lawmakers and aides.

Any time the Senate breaks for four days or more, the president has the power to officially appoint a nominee for a limited period without having to wait for a confirmation vote.

snip

Reid, a Nevada Democrat, kept the Senate in pro forma sessions during the final months of Republican President George W. Bush’s administration to block him from appointing nominees that Democrats had refused to confirm.

If Reid hadn’t decided to quietly schedule pro forma sessions, another procedure could have publicly forced him to do so. The House is required to agree to Senate recesses, and concurs as a matter of routine.

Confused? Is Reid a Democrat? Or has he secretly gone over to the dark side? It is time for the president and the Democrats to put on their “man pants” and call out these faux sessions that are constitutionally not legal sessions. I will repeat the arguments of why these pro forma sessions are not constitutional and do not stop the president from making recess appoints.

Victor Williams, Assistant Professor at the Catholic University of America School of Law and an attorney, writing for the The National Law Journal makes the argument that the pro forma sessions every three days during recess are little more “than a game of separation-of-powers chicken”. There is nothing in the Constitution and Appellate courts have ruled that “there is no minimum recess time required for a valid recess appointment”.

But there is no minimum recess required under any law. The three-day minimum recess is fiction – as fake as are the Senate faux sessions. Better to begin with nonfiction – the Constitution.

In 2004, the U.S. Court of Appeals for the 11th Circuit ruled: “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” In Evans v. Stephens, the 11th Circuit, following prior 9th and 2d circuit rulings, broadly affirmed the executive’s unilateral recess commissioning authority during short intersession and intrasession breaks.

Even the Senate’s own Congressional Research Service reports: “The Constitu­tion does not specify the length of time that the Senate must be in recess before the President may make a recess appointment.” . . .

The president’s constitutional appointment authority cannot be trumped, or even limited, by Senate scheduling shenanigans. In fact and law, the 111th Senate is now dispersed to the four corners for six campaign weeks. Gaveling open, and then gaveling closed, a half-minute meeting of an empty chamber is not a legitimate break in the recess. A Senate quorum could not be gathered; neither legislative nor executive business could be conducted. Constitutional law demands substance over form.

The faux sessions only further expose the broken institution and its failed, dysfunctional confirmation processes.

At bottom, recess appointments are a matter of presidential will. In 1903, Theodore Roosevelt set the standard when he recess-appointed 160 officials during a recess of less than one day.

Mr. Williams points out that George W Bush’s failure to call this should not be Barack Obama’s.

Perhaps it is George W. Bush’s fault that the media erroneously reported that Obama’s recess appointment authority is lost. When majority leader Harry Reid first used the pro forma tactic against Bush over Thanksgiving, 2007, the 43rd president failed to push back.

Bush did not recess appoint for the remainder of his term despite calls for him to call Harry Reid’s bluff. A commissioning of even one noncontroversial nominee to a low level position would have asserted the executive’s prerogative. His failure to do so may be mistakenly interpreted as setting a precedent. It does not.

As I have noted on this site, Harry Reid appears to have gotten the better of George Bush; bluffing is a basic gambling skill for separation of powers and Texas Hold ’em.

This government is in need of a major shake up. It’s time that the President and the Democrats stood up for the people who put them in office. End the game, call the bluff.

With the obstruction of a very united minority, there has been a great deal of debate about the filibuster and the reform of Senate Rule 22. In a New York Times op-ed, Former Vice President Walter F. Mondale, recalls how in 1975 when he was a Senator, the Senate voted to reduce the number of votes required to end filibuster from 67 votes, a super majority, to the current 60 votes. Clearly, he states this was not enough. Filibuster threats and cloture votes blocked legislation nearly 100 times in the 111th Congress.

Mr. Mondale argues that essentially, these rules abrogate the Constitution which only requires a 67 vote majority for the approval of treaties, “in all other instances it must be assumed that the Constitution requires only a majority vote”. In other words, many of the Senate rules are unconstitutional and could be done away with on a simple majority procedural vote under Parliamentary rules. That was the “nuclear option” that was used as a threat by the Republicans to force the Democrats to capitulate when they were n the minority.

The Constitution is clear that under Article I, Section 5 of the Constitution: “Each House may determine the rules of its proceedings.” However, it is very explicit about the few instances where a super majority vote is needed, it must be assumed that the Constitution requires only a majority vote in all other cases.

Congressional expert and Washington University in St. Louis political science professor Steven S. Smith, has testified before U.S. Senate Committee on Rules and Administration that there is an unhealthy exploiting of the Senate rules to block important legislation and limit debate. Prof. Smith also stated that

“wishing for better behavior” on the part of senators and their leaders won’t reverse the consequences of “two decades of intensifying parliamentary warfare” that has contributed to the demise of the appropriations process, more packaging in omnibus bills, and a shift of policy decision-making from committees to party leadership offices, among other changes

He proposed that these changes be made:

   (M)ore clearly protect each senator’s opportunity to debate and offer amendments;

   (L)imit debate on motions to proceed and combine and limit debate on the three motions to go to conference;

   (L)imit debate on appropriations bills and executive calendar business; and

   (W)here debate is not otherwise limited, allow a simple majority to eventually close debate.

On of the rules being considered is forcing the filibustering Senator to actually stay on the floor speaking for the duration of the filibuster, a la, Sen. Bernie Sanders’ recent 8 and a half hour tour de force on the Senate floor. There is also a need to end the policy of “secret holds” which prevents a bill or nomination from being considered even though it has cleared committee. The Democrats need to stand firm on rules reform, otherwise, we are in for an even more obstructive Senate in the 112th Congress.

Here is the argument for President Obama to appointment Peter Diamond, the Economics Nobel laureate, the Board of Directors of the Federal Reserve and make other appointments that have been blocked by the obstructionist Republicans and some blue Dog Democrats. Dr. Diamond’s confirmation has been blocked by Republicans, chief among them, Sen. Richard Shelby who had the audacity to call him “not qualified”.

Victor Williams, Assistant Professor at the Catholic University of America School of Law and an attorney, writing for the The National Law Journal makes the argument that the pro forma sessions every three days during recess are little more “than a game of separation-of-powers chicken”. There is nothing in the Constitution and Appellate courts have ruled that “there is no minimum recess time required for a valid recess appointment”.

But there is no minimum recess required under any law. The three-day minimum recess is fiction – as fake as are the Senate faux sessions. Better to begin with nonfiction – the Constitution.

In 2004, the U.S. Court of Appeals for the 11th Circuit ruled: “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” In Evans v. Stephens, the 11th Circuit, following prior 9th and 2d circuit rulings, broadly affirmed the executive’s unilateral recess commissioning authority during short intersession and intrasession breaks.

Even the Senate’s own Congressional Research Service reports: “The Constitu­tion does not specify the length of time that the Senate must be in recess before the President may make a recess appointment.” . . .

The president’s constitutional appointment authority cannot be trumped, or even limited, by Senate scheduling shenanigans. In fact and law, the 111th Senate is now dispersed to the four corners for six campaign weeks. Gaveling open, and then gaveling closed, a half-minute meeting of an empty chamber is not a legitimate break in the recess. A Senate quorum could not be gathered; neither legislative nor executive business could be conducted. Constitutional law demands substance over form.

The faux sessions only further expose the broken institution and its failed, dysfunctional confirmation processes.

At bottom, recess appointments are a matter of presidential will. In 1903, Theodore Roosevelt set the standard when he recess-appointed 160 officials during a recess of less than one day.

Mr. Williams points out that George W Bush’s failure to call this should not be Barack Obama’s.

Perhaps it is George W. Bush’s fault that the media erroneously reported that Obama’s recess appointment authority is lost. When majority leader Harry Reid first used the pro forma tactic against Bush over Thanksgiving, 2007, the 43rd president failed to push back.

Bush did not recess appoint for the remainder of his term despite calls for him to call Harry Reid’s bluff. A commissioning of even one noncontroversial nominee to a low level position would have asserted the executive’s prerogative. His failure to do so may be mistakenly interpreted as setting a precedent. It does not.

As I have noted on this site, Harry Reid appears to have gotten the better of George Bush; bluffing is a basic gambling skill for separation of powers and Texas Hold ’em.

Mr. President, you are a Constitutional Lawyer, starting the day after the elections, November 3, “buck up” and call the bluff.