Ohioans Cordray, Boehner key players in Obama 'recess' appointment storm

COLUMBUS, Ohio (CGE) - The new year is one day old, and many a New Year's Day resolution likely called for partisan political standoffs in Washington to ease up for the sake of the nation. But new year or not, old grudges continue unabated, especially when it comes to the appointing power of the chief executive.

 

 

Reports Monday about how Republicans intend to attack President Barack Obama this year rest on a campaign to highlight the gap between candidate Obama's promises of four years ago and the results President Obama has delivered four years later. 

 

For many, the president saved the nation from a second Great Depression, turned monthly job losses into 21 straight months of private sector job gains, changed America's health care system and, with the appointment of a director to run a new consumer finance protection agency, will better reign in Wall Street excesses.

 

Ohioans Richard Cordray and John A. Boehner are prominently featured in this constitutional saga. The former because he's been selected by President Obama to run the new Consumer Protection Finance Bureau; the latter because he wants to make it impossible for Obama to name Cordray to the post, Buckeye provenance notwithstanding. 

 

In their own way, Cordray, Ohio's last attorney general, and Boehner, a nine-term Congressman from southeast Ohio who is the third Buckeye to wield the gavel of the U.S. House Speaker, represent polar opposites on the question of whether the president has control over the executive branch or whether congress, the legislative branch, can use administrative gymnastics to stop the chief executive from installing candidates chosen to fill leadership positions under his control in those positions.

 

Definitions for the purpose of lawmaking, as all capitol watchers know well, are at the heart of what laws mean. During the Clinton impeachment years, the definition of what "is" is became an infamous parlor question. Now, during Obama's first term, the definition of "recess" is likewise destined to have near and far reaching consequences for both the president and for congressional leaders.

 

Congress earned a black eye last year in the eyes of the nation, when it stood witness to a year-long battle between Congressional Republicans, led in the House by Boehner and in the Senate by Minority Leader Mitch McConnell of Kentucky, and President Obama, who they vow to limit to one term. Polls show the American electorate has little respect for Congress these days.  

 

 

Back in Ohio, conducting what are called "skeleton sessions" or non-voting sessions where a couple legislators keep the General Assembly open even though no lawmaking is underway, is standard practice. Simply manipulating legislative session schedules, a practice that generally flies under the mainstream media's radar, caught the attention of Dennis Willard, writing at the time for the Akron Beacon Journal, who reported on it.

 

Not in Washington, though. The newest administrative tactic that's not really new because Democrats did it too is underway. Speaker Boehner, with encouragement from Sen. McConnell and others, is to deny President Obama a recess opportunity. In between legislative sessions, presidents can make appoints that otherwise might not be possible if a senator (s) is determined to obstruct the advise and consent process by filibuster.

 

 

At stake now is whether Obama will draw another battle line with Boehner and McConnell over pushing forward with an appointment of Cordray despite the two chambers conducting so called pro forma sessions, a procedural technicality of graveling in and out of session for a few minutes every two to three days, in order to keep Obama from filling confirmation-level jobs in their absence.

 

Obama wants Cordray to lead the Consumer Financial Protection Bureau, an agency designed to watch over financial operations perpetrated by Wall Street wizards. It's a key part to Obama's financial overhaul legislation, one of his accomplishments with a Democratic Congress. The problem is, it's also a new office pro-business Republicans want to weaken by barring Cordray filling the post.

 

Groups who have taken issue with Obama over compromising with Speaker Boehner and other GOP leaders too much during his first three years, see this intersection as tailor made for him to turn a constitutional question into a baseball bat that will earn him runs with a nation fatigued from failure in Washington to agree on issues large and small. It's also an election-year chance to put Republicans and their Tea Party wing, who used brinksmanship strategies to force concessions from Obama and Democrats on budgets, debt and deficits all last year, back on the defensive as a "do nothing" Congress.

 

Catholic University law professor Victor Williams has opined that what Speaker Boehner and Leader McConnell are doing to deny President Obama his power to appoint during a recess is nothing more than Republicans nullifying government. Williams urged Obama to puncture the "myth" that an official congressional recess lasts three days or more. In a memo released Thursday by People For the American Way, the standoff represents a chance "[for Obama] to engage in a fight he can so obviously win."

 

Doing so, some Washington watchers say, would be a bold counter-move that would upend a long-held but legally murky congressional tradition; it would also ratchet up tensions between Obama and the GOP and trigger fresh partisan fighting over the Senate's advise-and-consent role.

 

Meanwhile, Republicans argue that Obama cannot unilaterally change the bipartisan understanding that a Senate recess lasts longer than three days, a position that Senate Democrats and even an Obama Justice Department official, former Acting Solicitor General Neal Katyal, appear to accept.

 

A top GOP aide told Politico Thursday that the Senate would continue to use procedural maneuvers to remain in session for the next three weeks.

 

"As he did for the entire last year of the Bush administration, [Senate Majority Leader Harry Reid] did not adjourn the Senate this month, so we are not in recess," a senior aide to Republican leadership, who spoke on background because the matter is politically volatile, told Politico's Joseph Williams. "We will have pro forma sessions through Jan. 23, when the Senate resumes regular meetings. Since we are not in recess, there [can be] no recess appointments."

 

All 47 Senate Republicans signed a letter to Obama, before Christmas, calling on him to refrain from recess appointments for the good of legislative branch-executive branch relations. Ignoring the warning, they wrote, "would, at the very least, set a dangerous precedent that would most certainly be exploited in future cases" involving Senate confirmation votes and "could needlessly provoke a constitutional conflict between the Senate and the White House."

 

Congress does not officially adjourn unless the Senate and the GOP-controlled House pass matching resolutions. 20 Senate Republicans urged House Speaker John Boehner, in late May, to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president's term. They said Democrats used the tactic against Bush, who made no recess appointments between Democrat's initial pro forma sessions in November 2007 and the end of his presidency. Republicans say that establishes the precedent.

 

 

President Obama, during a White House press conference in December, said it makes "absolutely no sense" for the GOP to block the nomination. Blaming Republicans for failing to protect consumers in a down economy, he said, "Everybody says [Cordray] is highly qualified...a bipartisan individual who looks out for the public interest. This individual's job is to make sure people are protected from the financial abuses that triggered the economic meltdown.

 

"I want to send a message to the Senate: We are not giving up on this. We are going to keep going at it." Obama added, "We are not going to allow politics as usual on Capitol Hill to stand in the way of American consumers being protected from unscrupulous financial operators."