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Victor Williams

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Tea Party Ugly: House Blocks Obama Appointments Through 2012

Posted: 08/22/11 02:18 PM ET

At this week's Jackson Hole Fed conference, Ben Bernanke will consider the merits of QE3 and other Fed policy tools to "promote a stronger economic recovery." It is reassuring to know that our independent Federal Reserve will exercise consistent, prudent leadership.

Rick Perry's characterization of possible future Fed actions as "treasonous" money printing is not as shocking as the mainstream GOP's continued celebration of their newest Tea Party candidate.

These seriously challenging economic times call for serious leaders, not another Karl Rove cowboy. While some party consultants warn Perry to tone down his "colorful language," others cheer him on. Thus far, of his opponents, only Jon Huntsman has challenged Perry's extreme statement.

More shocking, Perry reaffirmed his statement and his doing so has helped place him near the lead in the nomination race. Most shocking of all, top Republican congressional leaders have yet to publicly condemn Perry's more serious threat of "pretty ugly" violence if Ben Bernanke were to visit the Republic of Texas.

Shocking, but not surprising. The ugly abuse Republicans have visited on Barack Obama's appointees and nominees has been far worse than mere cowboy-threats. Indeed, Bernanke's own January 2010 reconfirmation tribulation was far from pretty.

Exceptionally well-qualified Obama nominees have been Senate slandered, held, blocked and filibustered for months and years at a time. Obama's economic policy and regulatory nominees have been specially targeted for partisan abuse.

Now, 77 House Tea Party freshmen have made good on threats to escalate appointment obstruction for the rest of 2011 and through 2012. As I explained in last week's National Law Journal, the House Tea Party action is such a historic usurpation that it gives President Obama an opportunity to fight back against the broader appointment abuse and obstruction.

Jackson Hole Treason, 2 Fed Vacancies and an Economic Leadership Gap

Confirmation abuse has kept high-level economic offices, with functions critical to our economy's recovery, vacant for months and even years. Vacancies remain at the Federal Reserve, Comptroller of the Currency, Consumer Financial Protection, Housing Finance, FDIC, OMB, Commerce, Treasury, et al.

When Bernanke retreats to Jackson Hole, the point should not be lost that two out of seven Fed seats are still vacant. Great respect goes to long-suffering MIT economist Peter Diamond who recently withdrew his Fed nomination. Prof. Diamond's op-ed ("When a Nobel Prize Isn't Enough") is worth another read.

But equal credit goes to the many Obama nominees who continue the endurance test. Only the toughest, most patient nominees make it through the committee gauntlet into the queue to wait for a Senate floor vote. And there they wait -- aware that a lone senator (like Richard 45-billion Shelby) may file a blanket extortion hold to bargain for local pork at any time. They wait, hoping their name will somehow appear on a unanimous consent list.

Those who suffer a hold or actual filibuster must recognize that Majority Leader Harry Reid does not have the floor time to schedule a separate cloture vote on every filibustered nomination.

The most recent appointment obstruction has come not from the Senate, but from Tea Party freshmen exercising increasing control over the House of Representatives.

"Infinite Delays and Embarrassments," Foretold by Alexander Hamilton

The House is presently attempting to block President Obama's recess appointments by withholding adjournment consent from the Senate, thus keeping both chambers in pro forma sessions.

Not only does the House usurp the Senate's exclusive constitutional role in the appointment process, it does so for the express purpose of blocking the Executive appointment prerogative. The 77 House (Tea Party) freshmen publicly pledge to block all Obama recess appointments until Obama leaves the White House.

Was this foreseen by our nation's founders? Alexander Hamilton explained that the president alone has the choice in making nominee selections and the Senate alone has power to "ratify or reject." In Federalist No. 77, Hamilton explains why the Constitution's framers did not give the House any role in federal appointments.

A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. (emphasis added).

Led by Rep. Jeff Landry (R-La), the Tea Party freshmen also pushed (patently unconstitutional) legislation through the House to curtail the salary payments of certain Obama recess appointees.

The Tea Party House attempt to encroach upon the Senate's role in the appointment process is such a bold usurpation that it presents an opportunity for President Obama to push back against confirmation obstruction.

No Three-Day Recess Minimum for Appointments

As I explain in the National Law Journal and in prior posts, the congressional pro forma obstruction strategy is based on the specious premise that there exists a three day recess minimum to trigger the president's Article II, Section 2 recess appointment authority.

This is a purposeful misapplication of the three-day congressional comity rule of Article I, Section 5's Adjournment Consent Clause to the separate Executive recess appointment authority found in Article II, Section 2. Pro forma sessions are conducted every three days based on this faulty analysis which relies on a questionable 1993, nonbinding Justice Department memo.

There is no minimum Senate recess required to trigger the president's appointment authority. In 2004, the U.S. Court of Appeals (11th Circuit) stated explicitly: "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. And we do not set the limit today."

Some reasonably recommend that Obama formally adjourn Congress and then make recess appointments. However, Article II, Section 3 requires a "Disagreement" between the chambers. The disagreement requirement likely envisions a formal vote by each chamber regarding whether to adjourn. This requirement cannot be "finessed."

If all Senate Republicans do not agree to allow an adjournment vote, it is unclear whether Majority Leader Reid could muster the 60 votes needed to adjourn. No Senate adjournment vote equals no constitutional disagreement. Thus, both houses will likely remain in sham recess sessions for a very long time.

The solution is more direct: If the Senate is not sitting as a deliberative body able to render timely "advice and consent," Obama may sign recess commissions.

Presidential Recess Records

From George Washington forward, the other 43 presidents have used recess appointment authority to keep federal offices filled. Ronald Reagan recess commissioned 240 federal officials, George H.W. Bush (one term) 74, Bill Clinton 139 (including one judge), and George W. Bush 171 (including two judges). Obama has thus far has recess commissioned only 28.

As detailed in my recent Connecticut Law Tribune opinion, Executive authority to make recess appointments; the fulsome authority of those officials with recess commissions; and even the validity of re-recess appointments are all well established in law and practice.

The Obama Administration has been encouraged by its strongest supporters to more aggressively fight partisan obstruction. Prior posts have urged the use of the president's bully pulpit to demand timely Senate confirmation, and to regularize recess appointments to keep leadership offices filled. There is always hope that Obama will come out fighting for his nominees.

Obama met with congressional Republicans during the debt negotiations often twice daily in the White House. Perhaps such familiarity bred the level of contempt that he needs to deal with Tea Party ugly.

After such contact, Barack Obama deserves his 10-day summer break. Martha's Vineyard provides the perfect venue for him to sign a score of recess commissions -- while the Senate is on its 5-week recess. With two seats still vacant at the Fed, any vacation Ben Bernanke may take will likely be a short one.

Victor Williams is an attorney in Washington D.C. and a clinical assistant professor at Catholic University of America's School of Law.