Happy New Year? We can hope so. 2011 was a rough year for America and Americans, as I noted here yesterday in our year-end edition of the Dirty Thirty. As a New York Times editorial said on the year’s last day, “After they took power in January, the hard-line Republicans who dominate the House reached for a radical overhaul of American government, hoping to unravel the social safety net, cut taxes further for the wealthy and strip away regulation of business.” It is true that the Democrats kept the Republicans from achieving most of their goals, but the damage cannot be minimized. Harry Truman’s 1948 “do-nothing Congress” had nothing on the 112th Congress.
As we move forward into 2012, we are, most of us, probably happy to see 2011 put behind us. We might also be far less optimistic about 2012 than we were 2011, which is a frightening thought. It is an election year and yes, Americans have a chance to free themselves from Tea Party tyranny and two years of near-stasis at the federal level. But we will also have had another year for Tea Party extremists to perpetuate that gridlock and to step-up attacks on our rights at the local, state, and federal level.
The Republican Party has rejected liberalism, the legitimacy of the Democratic Party, and in many cases, reality itself. It has demonstrated a willingness time and again to go against the expressed wishes of the American people (especially with regards to issues like Marriage Equality) and doubled down on its support for the 1% against the well-being of the 99%. It has demonstrated a Machiavellian support for the idea that the means justify the ends and that honorable, moral behavior is for suckers, even while hypocritically campaigning on morality platform. It has rejected science in favor of fantasy, not only with regard to the environment and global warming, but LGBT rights, the place of homosexuality within the natural order of things, and women’s reproductive rights.
We’re being told that only a government run along a strict moralistic, Bible-based set of laws is legitimate. As such, Obama and the Democrats are usurpers.
Obviously we need change, and more change than we’ve gotten in the past two years. To be fair to Obama, most of what he accomplished to put the breaks on insanity (and a drift toward theocracy) in government after Bush’s eight year reign of terror. The key going forward is how to affect that change. What can America do in the face of continued Republican control of the purse strings (the U.S. House of Representatives) and control of many state legislatures? For the time being, the President has it within his power to make some recess appointments (under Article II, Section 2, Clause 3). This clause states,
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The intent, of course, was to prevent exactly what has happened over the past year: government paralysis. The previous Congress with a filibuster-proof majority confirmed 87 percent of Obama’s nominees. This Congress has confirmed only 16 percent.
Obama suggested that recess appointments were a possibility, and Richard Cordray is one of those who could benefit from the Senate recess. His appointment to the CFPB would do much to strike back at the GOP’s strategy of nullification.
A fly in the ointment is the Senate’s ability to not actually recess. As the Washington Times put it
By refusing to adjourn for the rest of the year, the House GOP, under a provision of the Constitution, would force the Democrat-controlled Senate to stay in session, too, thus denying President Obama the chance to make recess appointments and leaving the NLRB without a quorum to do business.
Republicans have admitted that the reason is to block recess appointments. As Chad Pergram admitted on FOX News’ website yesterday,
This was an effort to block Mr. Obama from making any potential recess appointments. In fact, many Republican lawmakers who were drafted to preside over the House sessions that convened every few days sometimes touted the fact that they were doing so to prevent President Obama from making such appointments.
No bones about it then. But frustrating as this is after the summer’s scorched earth tactics, Democrats should remember that Harry Reid did the same thing to George W. Bush in his last two years in office.
Here’s the thing: the Washington Times points out that “Although recent custom has held that a recess must be longer than three days before the president may use his appointment powers, the Constitution is not explicit about the matter.” For example, Teddy Roosevelt got 160 appointments through in an instant between gavels back in 1903 and Obama could do the same. Harry Reid got away with the tactic because Bush did not challenge it, despite encouragement to do so. If Obama chooses not to go this route, he can, as an extreme remedy (I say extreme because no president has ever done it) under Article II of the Constitution, force Congress to adjourn.
So far in his presidency Obama has avoided controversy, and whenever possible, sought the path of conciliation and accommodation with his Republican opponents. He might see either of these two options as too extreme. Forcing Congress to adjourn would certainly intensify the conservative blogosphere’s cries that Obama is installing a dictatorship and might trigger a constitutional crisis.
But in a frustrating year of hard-ball, the hard-ball has been almost entirely from the GOP’s side. On the bright side, assuming it extends beyond talk, Obama did say last week that no option was off the table, and White House spokesperson Jay Carney told reporters that the administration is not “relinquishing any rights here.” The House GOPers are within the bounds of the Constitution refusing to adjourn but the president has Constitutional remedies available as well. If he will take them. That no president has ever invoked Article II’s forced adjournment does not mean Obama cannot or will not be the first.
Here is what Article II Section 3 (State of the Union, Convening Congress) has to say:
[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper…
Foreign affairs may have originally, given the 18th century’s lag in communications, been directed at foreign affairs, but that was not its only purpose. Clearly, the willy-nilly adjournment of Congress by the Executive is something to be avoided, but so is nullification. One is the remedy for the other. Alexander Hamilton wrote in The Federalist No. 69 that “the President can only adjourn the national Legislature in the single case of disagreement about the time of adjournment.”
And this happens to be the case we are now experiencing. By refusing to adjourn the Republicans themselves have given President Obama the opportunity to move forward. Naturally, the GOP presents the House’s strategy of nullification in quite different terms, Chad Pergram on the FOX News site saying that “the White House has made it clear that it intends to intensify its attacks on Republicans in Congress.” So of course, “bypassing the traditional confirmation process could be a way to easily ratchet up the tensions in the new year.”
This is the narrative Republicans want to present to America, but to be blunt, it’s ass-backwards. Far too many Republicans have made clear since the 2010 midterms that their sole purpose was to obstruct the Obama administration and make him a one-term president. And it is the Republicans, not Obama, who have “bypassed” the “traditional confirmation process.” They have been clear in their goals and their verbiage and their actions match. Far from being a war on Republicans in Congress, we have seen a two-year war on President Obama by Republicans in Congress. When Obama attacks those Republicans in Congress now he is only firing salvos in a war they started.
For the sake of the nation, we need this gridlock broken, and waiting until 2012 seems impossible. The question on many liberal minds as we begin the New Year is this: will the President have the audacity to act?