In yet another way President Obama is like his immediate predecessor, he’s shamelessly abusing the recess appointment power to bypass Senate intransigence.
President Obama, making a muscular show of his executive authority just one day after Congress left for spring recess, said Saturday that he would bypass the Senate and install 15 appointees, including a union lawyer whose nomination to the National Labor Relations Board was blocked last month with the help of two Democrats.
Coming on the heels of Mr. Obama’s big victory on health care legislation, Saturday’s move suggests a newly emboldened president who is unafraid to provoke a confrontation with the minority party.
Just two days ago, all 41 Senate Republicans sent Mr. Obama a letter urging him not to appoint the union lawyer, Craig Becker, during the recess. Mr. Obama’s action, in defiance of the Republicans, was hailed by union leaders, but it also seemed certain to intensify the partisan rancor that has enveloped Washington.
“The United States Senate has the responsibility to approve or disprove of my nominees,” Mr. Obama said in a statement. “But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”
I haven’t followed the Becker controversy enough to have a strong opinion, although if the entire opposition party and two members of the president’s own party think an appointment for something that’s supposed to be an impartial review board is too biased to be trustworthy, they likely have a point. As to the other fourteen, they’re a mixed bag. Jen Psaki, writing for the White House Blog, contends, “Many of these fifteen individuals have enjoyed broad bipartisan support, but have found their confirmation votes delayed for reasons that have nothing to do with their qualifications. It has more to do with an obstruction-at-all-costs mentality that we’ve been faced with since the President came into office.” That’s self-serving but plausible.
Still, while the president has a right to feel frustrated, the usual procedure has been to make some sort of deal. Generally, the most controversial appointee or three is sacrificed and the opposition party is allowed to have input in the process, essentially reversing the appointment procedure and allowing the Senate to quasi-appoint some noncontroversial folks. Instead, Obama has continued a recent trend of abusing the recess appointment process, which exists solely because the Framers envisioned Congress being out of session for months at a stretch, not as a backdoor way to bypass the Senate when it’s on hiatus for a few days.
John Bolton, anybody?
Indeed, back in August 2005, a promising young Senator from Illinois, Barack Obama, said of Bolton’s recess appointment as UN ambassador, “To some degree, he’s damaged goods. I think that means we’ll have less credibility and, ironically, be less equipped to reform the United Nations in the way that it needs to be reformed.” Less than five years later, however, he’s justifying his decision in words eerily reminiscent of Bush’s: “This post is too important to leave vacant any longer, especially during a war and a vital debate about U.N. reform.”
To be clear: I’m not saying Obama is doing anything unprecedented or particularly worthy of criticism. Rather, I’m pointing out yet another data point, as if another were needed, confirming the thesis that presidents seldom give up extraordinary uses of power once predecessors get away with it. Obama is 44th in line on that one. And, to his credit, Obama resisted the temptation to recess appoint Dawn Johnsen as head of OLC.
Although, as Kevin Drum points out, Obama has done something intriguing here:
Years ago, after Republicans filibustered a Carter nominee to the NLRB, the two parties made a deal:the board would have three appointees from the president’s party and two from the other party. So after he took office Obama nominated two Democrats and one Republican to fill the NLRB’s three vacant seats and got support from a couple of Republicans on the HELP committee for the entire slate. But when it got to the Senate floor John McCain put a hold on Becker, and his nomination — along with the others — died.
Fast forward to today and Obama finally decides to fill the board using recess appointments. But what does he do? He only appoints the two Democrats. This is not what you do if you’re trying to make nice. It’s what you do if you’re playing hardball and you want to send a pointed message to the GOP caucus.You won’t act on my nominees? Fine. I’ll appoint my guys and then leave it up to you to round up 50 votes in the Senate for yours. Have fun.
Tangentially, this is also another opportunity to bang a drum I’ve been banging for a while: Far, far too many positions in our government are subject to presidential appointment and Senate confirmation. Wouldn’t we be better off with an NLRB that consisted of professional civil servants, drawn from the Senior Executive Service, with rich experience but no obvious ties to organized labor or the Chamber of Commerce? Ditto, for that matter, the Equal Opportunity Employment Commission and the Customs and Border Protection Division of DHS? Politicizing those offices undermines their perception as fair arbiters.
