The Wages of Procedural Errors

A good NYT editorial on the Republican nullification of the CFPB:

The consumer bureau has taken seriously its mandate to protect the public from the kinds of abuses that helped lead to the 2009 recession, and it has not been intimidated by the financial industry’s army of lobbyists. That’s what worries Republicans. They can’t prevent the bureau from regulating their financial supporters. Having failed to block the creation of the bureau in the 2010 Dodd-Frank financial reform bill, they are now trying to take away its power by filibuster, and they may well succeed.

The bureau cannot operate without a director. Under the Dodd-Frank law, most of its regulatory powers — particularly its authority over nonbanks like finance companies, debt collectors, payday lenders and credit agencies — can be exercised only by a director. Knowing that, Republicans used a filibuster to prevent President Obama’s nominee for director, Richard Cordray, from reaching a vote in 2011. Mr. Obama then gave Mr. Cordray a recess appointment, but a federal appeals court recently ruled in another case that the Senate was not in recess at that time because Republicans had arranged for sham sessions.

Two related points:

62 comments on this post.
  1. Cody:

    But Harry Reid told me they made a deal to fix nomination filibusters!

  2. root_e:

    This is the US Senate Democratic Caucus in action for 40 years. And yet, the “progressives” insist that President Obama could have pushed stronger legislation past those clowns by some magical process.

  3. Nocomment:

    As my Dad used to say “…worthless as tits on a boar”.

  4. David Hunt:

    My understanding was that the “fix” was a gentleman’s agreement to not filibuster certain appointments. I don’t remember which positions the agreement covered and I’m sure that the GOP will break it without a second thought the moment they can get anything out it.

    Why do Democrats constantly seem to go on the assumption that the GOP are good faith actors? I hope that they know something that I don’t because the alternatives are that they’re hoplessly naive or convinced that the results of not assuming they’re good faith actors would be even worse than what we’ve got. How’s that for a horrifying thought?

  5. Cody:

    I always assumed Democrats think Republicans will be punished by the electorate for breaking public agreements.

    I’m also aware this is always wrong. The media either 1) Ignores it or 2) blames Democrats for making the agreement in bad faith, so it’s okay for Republicans to break it!

    It truly is amazing. Then again, maybe Harry Reid is just shielding himself. He really wants to accomplish nothing, so he is just okay with not reforming the filibuster. He just had to make it appear okay.

  6. Manta:

    Suppose that there are 2 parties, and that they both cater almost exclusively to the interests of the rich.
    One of the 2 parties, call it the “R” party, is openly plutocratic, while the other one, call it the “D” party, pretends to represent also middle class and poor people.

    Exercise: which institutional mechanism would you establish to allow the 2 parties to continue catering for the rich, while allowing the “D” party to continue pretending that it cares for the poor?

    In particular, if you were at the head of the “D” party, and your party had the majority, what mechanism would you use to screw your voters while blaming the minority party?

  7. Manta:

    Would you stop voting for the democrats if they broke a promise to the republican representatives in order to advance your interests?

  8. root_e:

    Suppose there were two parties: one right wing and the other a coalition of reform minded groups that had significantly enhanced social justice over 60 years but, like many organizations, contains a faction of entrenched incumbents more interested in its own interests than in political change. Suppose you wanted to prevent any threats to national elites. In that case, you could fund the right wing party and the incumbents and also make sure to arrange plenty of visibility for purportedly progressive groups that insisted both parties were the same. In that way you attack actual social change on three fronts.

  9. JKTHs:

    It seems like there were a lot of things the 111th Congress were oblivious about, mainly the possibility of the Congress being taken over by crazies who were campaigning against them at the time.

  10. JKTHs:

    I’d go back further than 40 years.

  11. jeer9:

    Conspiracy theories are frowned upon at LGM. Dem incompetence is better described as poor strategy, the difficulties of big tentism, or impossible thinking regarding primaries.

  12. efgoldman:

    Dem incompetence is better described as poor strategy, the difficulties of big tentism, or impossible thinking regarding primaries. just exactly what it is.

    Fixed.

  13. Manta:

    And unicorns: you forgot to mention them.

    Which of the following assertions you disagree with:
    1) Rich people and corporations lavishly fund both parties (more the reps than the dems, though).
    2) representatives of both parties will cater much more closely to their rich constituents than middle class and poor.

    When somebody’s action aligns with his interests, I usually don’t call him incompetent. Dem’s actions align with their donor’s interests: that is sufficient explanation for them.

  14. Cody:

    Touche…

  15. Manta:

    The only incentive I can see for parties to keep promises to the other party is the hope to be reciprocated. How realistic is this hope in the present context I don’t know.
    The electorate has no reason (and will not) punish them for breaking their agreements with the other party: quite the opposite, they will push their representatives to break those agreements.

  16. FlipYrWhig:

    Why do Democrats constantly seem to go on the assumption that the GOP are good faith actors?

    Do you think they do? I don’t. I think Democrats in the Senate (1) seek to protect their individual perks and powers, (2) are wedded to genteel notions of sportsmanship and fair play that they’ll continue to observe even when their opponents make it tempting to break them. I think Democrats know full well that Republicans are saboteurs. They just don’t know what to do about it.

  17. root_e:

    True, we live under oligarchic despotism and such minor things as civil rights laws, medicare/SS, the millions of people getting health care under ACA, the ARRA, the withdraw from Iraq, the Ledbetter act, the repeal of DADT, and so on mean absolutely nothing except in the lives of unimportant people who probably don’t even have CREDO accounts. My bad. I take it back and sentence myself to 10 years researching the policy achievements of the Park Slope Gramscian Co-Op Study Group.

  18. Murc:

    Why did the legislation require a director for the agency to operate?

    This doesn’t seem ridiculous on its face. In a properly functioning government, not only wouldn’t we know this, we also might think it was a good idea.

    The Director of the CFPB is, if I recall right, the only Congressional appointee at the agency. If I were a Senator, creating a shiny new regulatory agency, I would want it to not be able to operate until its Director had stood in front of me and justified himself, especially given the fact that about half the time the President is gonna be a member of the other party. I wouldn’t want him to be able end-run Congress by just running the agency without a Director; at worst, I’d want to force him to chain recess-appoint people and have to answer for that.

    That system would work just fine in a Senate where nominees could come to a vote.

  19. NonyNony:

    I think (2) is highly dubious. I doubt that many Senators actually believe that (though many would use it as a point of rhetoric to beat an opponent about the head and shoulders with if they thought it was to their advantage).

    A desire to protect and preserve their own individual power and seats is sufficient to explain most Senator’s actions with regards to anything that goes on in the Senate. I’d add to that a small-c conservatism about not changing things because they don’t like change and that pretty much explains everything.

  20. Sebastian H:

    Make them actually filibuster. No more faux filibusters. I don’t care that it is ‘harder on the majority party’. Do your job. Seriously.

  21. Murc:

    Conspiracy theories are frowned upon at LGM. Dem incompetence is better described as poor strategy, the difficulties of big tentism, or impossible thinking regarding primaries.

    Really? LGM takes the position that primarying shitty dems in blue states is a bad idea? You got a cite on that?

  22. joe from Lowell:

    Dem’s actions align with their donor’s interests: that is sufficient explanation for them.

    Their biggest donors are unions, followed by leftish issues groups.

  23. Bill Murray:

    That seems unlikely for quite a few Senators. Just to pick the first Democratic Senator I came across (Richard Blumenthal of CT) — he appears to have received about 5x more from the FIRE sector as labor

    https://www.opensecrets.org/politicians/industries.php?type=C&cid=N00031685&newMem=N&cycle=2012

  24. David Nieporent:

    hack Republican judge

    If “law office history” is the term for lawyers/law profs/judges without historical training selectively using historical arguments for advocacy purposes, what is the term for political scientists without legal training (who don’t even understand that circuit court decisions require a minimum of two judges, not one), ‘analyzing’ a decision solely based on the identity of the author and based on whether they like the result?

    Let’s be clear where a majority of the blame belongs here: on the Senate Democrats who prioritize their individual prerogatives over the good of the country and the long-term interests of their party by preserving the filibuster.

    How about on the Senate Democrats who invented the pro forma session tactic, without a peep of protest from Scott Lemieux, to keep George Bush from making recess appointments?

  25. Scott Lemieux:

    No, jeer9 believes in running liberal candidates in deep red states.

  26. Scott Lemieux:

    (who don’t even understand that circuit court decisions require a minimum of two judges, not one

    Yes, clearly identifying an opinion with his author clearly means that I don’t understand that this was an opinion by a 3-judge panel. Right. From the first fucking sentence of the linked article:

    On Friday, a three-judge panel on the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments to the National Labor Relations Board—the U.S. agency charged with remedying unfair labor practices—were unconstitutional.

    People who make erroneous claims that are contradicted by easily available evidence are hacks in any field!

    ‘analyzing’ a decision solely based on the identity of the author and based on whether they like the result?

    Or, actually, because as I lay out in detail the opinion doesn’t make any sense. One of us is evaluating the opinion solely based on whether they like the result, but it’s not me.

    How about on the Senate Democrats who invented the pro forma session tactic, without a peep of protest from Scott Lemieux, to keep George Bush from making recess appointments?

    1)Please to be citing any argument I made that the recess appointment of Pryor was unconstitutional. Good luck!

    2)Again, as you would know had you actually read the opinion, your ongoing focus on pro forma sessions is completely inappropriate. The opinion made all intrasession recess appointments unconstitutional; whether the pro forma sessions count as sessions is beside the point.

  27. Sly:

    Why did the legislation require a director for the agency to operate? Even granting that I can’t blame anyone for failing to anticipate that a hack Republican judge would read the recess appointment power out of the Constitution, given the context of constant Republican obstruction this was either a foolish oversight or active sabotage.

    The same reason that war powers have been abdicated; the last thing a Congressman or a Senator wants is accountability, and the easiest way to avoid accountability is to let someone else make the decisions. Hell, then you can even join the critics if those decisions prove unpopular.

    “Look at what that guy did with all the power I gave him with no direction on how to use it! Christ, what an asshole!”

  28. Murc:

    I’m aware of that position, but it isn’t what he said. He was speaking of primaries.

  29. DrDick:

    Does this mean that all of David’s clients (past and present) are eligible to file a class action suit against him for legal malpractice and fraud (representing himself as an expert in law)?

  30. Scott Lemieux:

    That’s what I mean. He thinks that conservative Democrats from deep red states should be primaried.

  31. Murc:

    How about on the Senate Democrats who invented the pro forma session tactic, without a peep of protest from Scott Lemieux, to keep George Bush from making recess appointments?

    Regardless of Scott’s position on pro forma sessions (which is indeed pretty crazy) that’s a deeply distorted view of what actually happened.

    The Senate Democrats held pro forma sessions to keep George Bush from recess appointing people who could not win Senate confirmation. While such appointments are unquestionably legal, the Senate understandably felt that Bush should nominate people who could get 51 votes.

    Therefore, they used their own legal tactic, keeping the Senate in sessions all the time, to stop him from doing this. In this instance Bush was in the wrong, not the Senate.

    In order for the Senate to be in the wrong, they would have to be using pro forma sessions to stop the President from appointing anyone, at all. Or a minority in the Senate could be using the filibuster to stop the confirmation of people who do have 51 votes. Both those tactics are of course legal, but they’re also wrong.

  32. FlipYrWhig:

    I dunno. I feel like there are old guard senators who still believe in the spirit of collegiality — they think it’s wrong for current Republicans to break those norms, but don’t want to sacrifice the norms themselves in order to pursue momentary partisan successes. Maybe “collegiality” is too sepia-toned. But think of someone like Russ Feingold, who believed deeply in the institutional role of the Senate. That takes your notion of small-c conservativism, or traditionalism, and bundles it back up into a value that isn’t just jealous self-interest or self-preservation. (Mind you, I still think it’s perverse for these guys to cling to these things so tightly, but I think it’s how they actually think.)

  33. Incontinentia Buttocks:

    Actually, few progressives insist that this is the case, which is why few progressives “punished” Obama in 2012 (in either the primary, which was uncontested, or the general election)…or even in 2010 (when Obama lost much of the center).

    Some progressives (myself included) occasionally blame the Democratic Party (Senate + Obama) for not producing stronger legislation. But they’re clearly the lesser evil, so whatcha gonna do?

  34. Incontinentia Buttocks:

    Though given that Chris Dodd was largely responsible for authoring the legislation, I think intentional sabotage is a very real possibility.

    (In case you need a refresher course, here‘s a list of Dodd’s biggest contributors. The top five: Citigroup, United Technologies, Royal Bank of Scotland, JPMorgan Chase & Co, SAC Capital Advisors.)

  35. Scott Lemieux:

    which is indeed pretty crazy

    As I said on the other thread, if you agree with Murc that constitutional law should be 100% form and 0% substance, you’ll love the Supreme Court’s civil rights and liberties jurisprudence from 1880-1936.

  36. jeer9:

    I’m thinking of McCaskill in particular. But it was impossible to primary her because she was the only one capable of beating the Republican nominee and there was no way any strategist could have predicted that the Republicans would nominate a wingnut as such an occurrence had never happened before. In any case, the race was close – she only won by sixteen points or so. An actual liberal would have certainly lost against Akin. Maybe next time.

  37. Murc:

    I said this? Where? You got a cite?

    Because I don’t believe I said that at all.

    As I recall, the issue at hand was that you believe that the proper way to determine whether or not the Senate is in session (something rather important) is not for there to be some objective standard, but for the President to make that determination, and if the Senate disagrees, the proper way to adjudicate that is for judges to attempt to determine what is in the hearts and minds of the Senators, and if their motives weren’t proper ones, said judges should rule that the Senate wasn’t in session at all.

    If I’m wrong about any of that I welcome a correction.

  38. David Nieporent:

    If you understand that it’s a three judge panel, then why did you write, “failing to anticipate that a hack Republican judge would read the recess appointment power out of the Constitution”? It wasn’t “a judge.” It was three judges. All of whom agreed.

    Because you don’t understand the legal arguments and want to look at it solely from how it affects the politics, you want to personalize it. You want to say that it’s only a “hack Republican” (but you repeat yourself) judge who would rule this way. I wonder how your readers would feel if they knew that you were concealing the fact that one of the most liberal judges on the 11th Circuit — Rosemary Barkett — held that this type of use of the recess power was unconstitutional. I wonder how they’d feel if they knew that you were concealing the fact that actual legal academics (not political science professors) with liberal credentials like Marty Lederman and Lawrence Tribe argued (on behalf of Ted Kennedy!) that this type of use of the recess power was unconstitutional. Of course, none of that proves that the Noel Canning decision was correct; it just illustrates that you are simply being dishonest to the handful of people who read your blog when you convey the impression that it takes partisanship (or “hackery”) to have that interpretation of the Constitution.

    Or, actually, because as I lay out in detail the opinion doesn’t make any sense. One of us is evaluating the opinion solely based on whether they like the result, but it’s not me.

    Actually, you’ve never explained why the opinion doesn’t make any sense; you’ve never even evinced that you read it. The opinion engages in statutory analysis. Analysis that you never address. You simply argue that it makes it harder for Obama to get what he wants.

    2)Again, as you would know had you actually read the opinion, your ongoing focus on pro forma sessions is completely inappropriate. The opinion made all intrasession recess appointments unconstitutional; whether the pro forma sessions count as sessions is beside the point.

    Wrong. It’s not “beside the point” at all, because if the pro forma sessions count as sessions, then the holding of the case is correct, regardless of whether “intrasession recess appointments” are otherwise constitutional.

    See, this is what I mean about you not understanding legal analysis. The Circuit Court (not “a [] Republican judge”) gave three independent reasons for its ruling that the NLRB appointments were unconstitutional: (1) the Senate was in session, (2) even if it was not in session, it was adjourned but not in recess, (3) the vacancy didn’t arise during the putative recess, as required. If any of those three hold, then the decision is correct, and the NLRB appointments (and CFPB appointment) cannot stand.

    1)Please to be citing any argument I made that the recess appointment of Pryor was unconstitutional. Good luck!

    Sigh. My statement had nothing to do with Pryor. In your feeble attempt at a gotcha, you didn’t bother to look at the timeline. Pryor was purportedly recess appointed in 2004. In 2004, Bill Frist led the Senate. Harry Reid’s invention of the pro forma session tactic did not happen until 2007. And did not lead to you saying, “This is a horrible tactic that reads the recess appointment power out of the Constitution.”

  39. David Nieporent:

    Both those tactics are of course legal, but they’re also wrong.

    I am not going to quarrel with that argument. I am attacking Scott’s legal analysis, not his argument about which tactics he approves of.

    I would note, however, that while Cordray’s nomination to the CFPB fits the description you provide, the NLRB nominations do not. The GOP had not stymied Obama’s attempt to appoint these people; they weren’t the victims of a filibuster. Obama just recess-appointed them right away, before even giving the Senate a chance to consider them. Even if one thinks that the filibuster is terrible in general, or is terrible in the context of nominations, with respect to the specific NLRB nominees at issue here it was actually Obama who was acting extra-constitutionally (even if legally).

  40. Hogan:

    You know Connecticut is the insurance capital of the known universe, right?

  41. Scott Lemieux:

    f you understand that it’s a three judge panel, then why did you write, “failing to anticipate that a hack Republican judge would read the recess appointment power out of the Constitution”? It wasn’t “a judge.” It was three judges. All of whom agreed.

    Because it’s a one-line summary of a much broader argument? Christ. Anyway, yes, it was a panel of three Republican nominees who issued the opinion, as my actual piece on the subject indicates.

    Actually, you’ve never explained why the opinion doesn’t make any sense; you’ve never even evinced that you read it. The opinion engages in statutory analysis. Analysis that you never address.

    Anybody can click through to the link and see that you’re full of shit. Although since you call an argument relying on an interpretation of Article II “statutory analysis,” I supposed that further proof that you’re full of shit would be superfluous.

    Wrong. It’s not “beside the point” at all, because if the pro forma sessions count as sessions, then the holding of the case is correct, regardless of whether “intrasession recess appointments” are otherwise constitutional.

    Well, yes, if Sentelle had written a narrower opinion it wouldn’t be beside the point. But as you’ll see should you ever choose to read the opinion for the first time, whether the “pro forma” session counted as a session is ultimately irrelevant to the opinion Sentelle actually wrote, because Sentelle’s opinion held that all intrasession recess appointments are unconstitutional. Hence, the appointment in question would be unconstitutional even if the sham sessions aren’t considered sessions. The superfluity of the pro forma appointment question to his conclusion explains why he gives the question relatively little attention.

    And did not lead to you saying, “This is a horrible tactic that reads the recess appointment power out of the Constitution.”

    Indeed, because no Democratic judge issued a ruling reading the recess appointment power out of the Constitution. I expect members of Congress to make hackish and hypocritical arguments; I don’t expect federal judges to endorse them.

  42. Scott Lemieux:

    No. I’m saying that for the purposes of interpreting the scope of the recess appointment power, it’s appropriate to consider the context of congressional actions when determining whether the Senate is in fact in recess. The idea that to do so requires reading the “hearts and minds” of legislators is the same kind of autistic formalism that led to “well, sure, no African-American has served on a jury in this county for 40 years, but the law is race neutral, so how can we see into the hearts of the commissioner?”

  43. Murc:

    I’m saying that for the purposes of interpreting the scope of the recess appointment power, it’s appropriate to consider the context of congressional actions when determining whether the Senate is in fact in recess.

    Why?

    The Senate is a lawmaking body. It seems like it would be pretty easy to determine when it is and isn’t in recess.

    I mean, I get where you’re coming from; you want the government to be staffed, and take a dim view of the Senate refusing to staff it and taking steps to prevent the President from staffing it.

    But the Constitution doesn’t give a fuck about that. It just says the President can staff the government if the Senate is in recess. It doesn’t care about “real” recesses or not.

    The idea that to do so requires reading the “hearts and minds” of legislators

    How doesn’t it, though? I mean… suppose the President says “You guys aren’t actually in session. I’m recessing appointing some people.” The Senate says “Yes, we are! We’re conducting business!” That would in fact require a judge to divine whether or not the Senate is lying, would it not?

    My understanding is that, legally speaking, while it is recognized that judges and juries sometimes need to make that call, it is generally preferred that laws be made objective, so they can be more easily followed. It’s why we have speed limits, rather than simply empowering police officers to decide when someone is going to fast; that’s a subjective standard, whereas “you were going 50 in a 45 zone” isn’t.

    “well, sure, no African-American has served on a jury in this county for 40 years, but the law is race neutral, so how can we see into the hearts of the commissioner?”

    That’s one of those situations where they did indeed need to decide, based on the evidence and on reasoning, that the commissioner was lying his ass off.

    But there was, in fact, plenty of actual, real-life evidence to accompany said lying. And above and beyond that… systematically excluding African-Americans from jury service was both illegal and unconstitutional. The Senate deciding it wants to be in session all the time is neither.

  44. Murc:

    Even if one thinks that the filibuster is terrible in general, or is terrible in the context of nominations, with respect to the specific NLRB nominees at issue here it was actually Obama who was acting extra-constitutionally (even if legally).

    … huh?

    If something is legal, it’s Constitutional. It’s like how all squares are rectangles.

  45. sibusisodan:

    The Circuit Court (not “a [] Republican judge”) gave three independent reasons for its ruling that the NLRB appointments were unconstitutional:

    It only gave two reasons. Your first reason does not appear in the opinion.

    The opinion does not seem to consider whether senate was in session. Its argument is grounded on the senate not being in ‘the recess’. Therefore the question of pro-forma sessions is moot.

  46. sibusisodan:

    …and boy did I ever mess up those bquotes. Ho him.

  47. root_e:

    It’s even worse then that, because the Circuit Court has 2 vacancies that should have Obama Judges.

  48. David Nieporent:

    I didn’t say unconstitutionally; I said extraconstitutionally — that is, outside constitutional norms.

  49. Scott Lemieux:

    But the Constitution doesn’t give a fuck about that. It just says the President can staff the government if the Senate is in recess.

    Indeed. But it doesn’t say that the federal courts are required to give entirely uncritical deference to how the Senate declares a recess.

    How doesn’t it, though? I mean… suppose the President says “You guys aren’t actually in session. I’m recessing appointing some people.” The Senate says “Yes, we are! We’re conducting business!” That would in fact require a judge to divine whether or not the Senate is lying, would it not?

    In the same sense that inferring racial discrimination from fact patterns other than a state official admitting an intent to discriminate in open court, yes. This just doesn’t bother me; courts have to do this all the time. Context matters. And it’s not terribly difficult to make the same inferences about sham pro forma sessions; if the Senate isn’t doing anything and has a pattern of obstructing presidential nominees, I don’t see why courts can’t draw the obvious conclusion.

  50. David Nieporent:

    Because it’s a one-line summary of a much broader argument?

    No, actually, that’s your whole argument. Sentelle is a Republican appointee, his opinion leads to results that Republicans would approve of, it hurts Obama, therefore, it’s a bad opinion.

    Well, yes, if Sentelle had written a narrower opinion it wouldn’t be beside the point. But as you’ll see should you ever choose to read the opinion for the first time, whether the “pro forma” session counted as a session is ultimately irrelevant to the opinion Sentelle actually wrote, because Sentelle’s opinion held that all intrasession recess appointments are unconstitutional. Hence, the appointment in question would be unconstitutional even if the sham sessions aren’t considered sessions. The superfluity of the pro forma appointment question to his conclusion explains why he gives the question relatively little attention.

    You are apparently unaware that a court can decide a question based on more than one reason. And if one of those reasons is incorrect, that does not suffice for concluding that the court was incorrect.

    It is quite true that the opinion held that all intrasession recess appointments are unconstitutional. It is also quite true that the decision would have come out the same way even if the opinion did not so hold, because there were other grounds for the decision. It is also quite true there is nothing “hackish” about this opinion. You don’t realize this because your entire response was a knee-jerk this-is-bad-for-Obama-and-a-Republican-made-the-decision-so-its-partisan.

    You could have argued that the decision was broader than it needed to be to reach the result. You could have argued that it was wrong, although that would have required you to delve into the text and history. Instead, you argued that it was partisan hackery, trying to hide from people reading your non-lawyer “analysis” that there were plenty of non-Republican-partisans who agreed with it. Anybody reading just your “analysis” would have thought that this opinion was conjured from thin air, that nobody except a lifetime member of the Federalist Society could ever have conceived of it.

    And your “reading the recess appointment power out of the Constitution” is just laughable; you apparently don’t even understand the purpose of the recess power. It is not intended to empower the president to get around an uncooperative Senate; it’s just intended to deal with emergencies when the Senate cannot (not will not) act. The decision does not “read it out” of the Constitution; it simply treats it as appropriately rare and narrow.

  51. Murc:

    Well, the obvious conclusion is “the Senate is in session purely to obstruct these nominees” is it not?

    That’s… not illegal. Nor is it unconstitutional. The Senate has no legal duty to actually conduct business while in session. They could spend all their time perfecting a hundred-person a capella version of “In Seattle” and they’d be equally as in session as they were when they passed the New Deal or the Great Society.

  52. djw:

    It seems like it would be pretty easy to determine when it is and isn’t in recess.

    Why? The constitution offers no definition whatsoever. Why should the actor that is attempting to stretch the meaning of the term for political gain be granted 100% of the defining power, when such power isn’t granted by law?

  53. John:

    An actual liberal could very well have lost to Akin.

  54. John:

    I don’t really get this. There’s tons of federal agencies that can function with a temporary (non-Senate-confirmed) director. The Department of Commerce hasn’t had a Secretary for almost a year now.

    Congress has authorized the agency. Why should it separately need congress to confirm a director for it to be able to do the work congress authorized it to do?

    It’s one thing for regulatory commissions like the NLRB to be unable to function without a quorum. They are designed to be semi-independent of the executive. That’s not really true here, as far as I know.

  55. Scott Lemieux:

    No, actually, that’s your whole argument. Sentelle is a Republican appointee, his opinion leads to results that Republicans would approve of, it hurts Obama, therefore, it’s a bad opinion.

    Again, this simply isn’t true, as anyone can click the like and see. Moreover, pompous arguments from authority from people who can’t tell the difference between the U.S. Constitution and the U.S. Code are unlikely to be persuasive.


    You are apparently unaware that a court can decide a question based on more than one reason
    .

    I understand this perfectly well. But in this case, since Sentelle held that the appointment was unconstitutional whether the pro forma session was a session or not, again whether it’s a pro forma session is beside the point. You’re defending a much narrower argument than Sentelle actually made.


    You could have argued that the decision was broader than it needed to be to reach the result.

    From the piece you haven’t read, about the decision you haven’t read:


    The question of whether the Senate can use pro forma sessions to evade the president’s authority to make recess appointments, however, turns out to be beside the point. Sentelle’s stunningly radical opinion holds that all intrasession appointments violate the Constitution.

    This is exactly my fucking argument. A narrow opinion would have been wrong but more defensible and less damaging to the functioning of government. To reach out and upset decades of settled bipartsian practice without remotely adequate justification is another matter entirely.


    t’s just intended to deal with emergencies when the Senate cannot (not will not) act

    This is question-begging that is utterly inconsistent with longstanding practice. And, as I point out in the piece you haven’t read about the decision you haven’t read, it’s an autistic formalism-for-the-but-not-for-me argument; the purpose of the “advise and consent” power was not to allow the Senate the ability to serially obstruct nominees either, but the Courts have (appropriately) not ruled this unconstitutional.

  56. Scott Lemieux:

    That’s… not illegal. Nor is it unconstitutional.

    This is 1)correct and 2)irrelevant. Nobody’s arguing that sham pro forma sessions are illegal. They’re arguing that they shouldn’t be considered a “recess” for the purposes of determining the scope of the president’s recess appointment power.

    Again, you’re making every interpretive blunder the Supreme Court used to read the Civil War amendments out of the Constitution. The recess appointment power is lodged in Article II. The “advise and consent” language as well as the structural placement of the appointments power in the article outlining presidential power strongly implies that Senate’s role is intended to be subordinate. To pretend that sham sessions intended solely to frustrate the president’s appointment power are real sessions in interpreting the scope of the recess appointment power is perverse.

  57. Murc:

    Why should the actor that is attempting to stretch the meaning of the term for political gain be granted 100% of the defining power, when such power isn’t granted by law?

    Well, hold on.

    I’m not saying the Senate should be granted 100% of the defining power, although given that it’s their institution, they should clearly have wide latitude in determining when and if they’re in session.

    What I am saying is that this is something we’re capable of having an objective standard for, and so there should be an objective standard. There’s a strong case to be made that if 99 Senators have scattered to the four corners of the world and left Rand Paul to read his Atlas Shrugged fanfiction in the well of the senate, they’re not actually in session.

    But “the President and whatever judges he can get to rule favorably can decide the Senate isn’t in session based purely on what they view the Senate’s motivation is” doesn’t cut it for me.

  58. Murc:

    They’re arguing that they shouldn’t be considered a “recess” for the purposes of determining the scope of the president’s recess appointment power.

    That comes down to legality, does it not? The Senate has to be in recess in order for the President to lawfully exercise his recess appointment power. That makes the question of whether the Senate is or is not in session a legal one, does it not?

    Especially since, if I recall right, there are a number of other actions the Senate can only legally undertake while in session.

    The “advise and consent” language as well as the structural placement of the appointments power in the article outlining presidential power strongly implies that Senate’s role is intended to be subordinate.

    If we’re going to argue about what it “implies” I can turn this right around and argue that the Senate and President are intended to be co-equals because the consent of both is explicitly, rather than implicitly, required in order to staff the government under normal circumstances.

    To pretend that sham sessions intended solely to frustrate the president’s appointment power are real sessions in interpreting the scope of the recess appointment power is perverse.

    Okay. Who decides what sessions are real or not? What’s the legal rubric here? What standards should be used to determine if the Senate is in session to conduct ‘real’ business or if they’re in session for ‘sham’ business? And what is sham business? The Senate deciding it doesn’t want the government staffed is something within its legal power to do so; they could make an argument that staying in session in order to frustrate the President is part of their power to check the Executive.

    I’m not sure how “Fuck you, Mr. President” can be considered a ‘sham’. It’s bad policy, but that’s different.

  59. David Nieporent:

    since Sentelle held

    No, the court held. You’re still trying to personalize it in a desperate attempt to disguise the fact that your argument has no legal basis to it.

    This is exactly my fucking argument. A narrow opinion would have been wrong but more defensible and less damaging to the functioning of government. To reach out and upset decades of settled bipartsian practice without remotely adequate justification is another matter entirely.

    The “adequate justification” is the constitution. “Settled bipartisan practice” is not a legal argument. Perhaps you skipped that day of the law school you didn’t attend.

    That you don’t understand that interpreting the constitution involves a process of statutory analysis — rather than just Scott making shit up (“a narrow opinion would have been wrong”) — is just icing on the cake.

  60. elm:

    When the decision had to be made to primary McCaskill, was there any reason to believe Akin would come out in support of rape? Had he not said that, the election would have been close and a leftier Dem would have been more likely to lose than McCaskill.

    I supported primarying Lieberman, I’d support primarying Feinstein. I’d oppose primarying Conrad, because no one better than him would be likely to win. I think someone to the left of McCaskill could win Missouri, but they couldn’t be too far to the left of her (unless the opponent supports rape or something) without becoming less likely to lose in the general. Is the marginal improvement over McCaskill worth the risk and worth the opportunity cost of time and money progressives could use in other elections? I’m not sure. I’d be willing to listen to the case being made, though.

  61. Scott Lemieux:

    Right. If your strategy depends on “being lucky enough to run against Todd Akin,” it’s not going to be workable. And it’s far from obvious that Elizabeth Warren would have beaten Akin; sure, McCaskill won by by 15 points, but then Christine O’Donnell lost by 17 points…but Castle would have won handily.

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