Interesting on the Rachel Maddow show last night: Gene Sperling, director of the National Economic Council, says that the Republican position that led to the recess appointment of Richard Cordray to the Consumer Financial Protection Bureau amounted to "nullification." You can jump ahead to about time 5:40 to hear that part of his pitch.
"Nullification" is never going to be a mainstream issue -- and for most discussions the real point is that CFPB can help (in a modest way) correct the banking-industry abuses that led to the previous financial disaster. But for purposes of laying down a marker and signaling the administration's awareness of what is happening, it is good to hear.
For a somewhat dissenting view, after the jump see a note from a former Republican Senate staffer, responding to the message from former Republican Senate staffer Mike Lofgren. Message from both of them: today's Republican minority clearly is trying to obstruct and even "nullify" administration efforts, but these former staffers are concerned about the long-term ramifications of Obama's response. I'm more in the camp, as argued by Laurence Tribe in the NYT, and by Jonathan Cohn in the New Republic, (and by the Hon. Jon Stewart last night) that Obama's actions conform to the spirit and intention of the recess-appointment clause. More on that anon -- and, of course, I Am Not A Lawyer.
For the record: Yes, I am against this procedural tyranny-of-the-minority when carried about by Democrats too, as with today's big story about Robert Menendez's apparently vindictive "hold" on a nominee for a seat on the Third Circuit appeals court. The Senate is full of all kinds of curlicues and procedural favors for individual Senators that make its workings seem courtly and reflective -- as long as prevailing norms keep their use to a "reasonable" level. Over the past few years we've seen the erosion of those norms, so that the Senate has become the equivalent of an all-you-can-eat buffet at which people pitch tents and eat their fill forever. Or something.
A former staffer to a Republican U.S. Senator writes (and this picture isn't of him, just a running logo for the series):
I've concluded that your correspondent Mike Lofgren is correct. Cordray and the others are not proper recess appointments; they will get thrown out upon legal challenge.
The President does not get to decide when Congress is in session. If he chooses, he can recall one or both Houses into session under Article II, Section III -- the Constitution being silent as to how long Congress must be in recess before the President may recall it -- but he may not dictate what Congress must do when Congress has decided it is in session.
The argument you cite, by former Bush administration Justice Department officials Stephen Bradbury and John Elwood, is based on an obsolete precedent. In 1905 and 1921, Senators and members of Congress dispersed during recess periods to locations days or even weeks removed from Washington; a pro forma session might arguably have been called fictitious, because a quorum able to conduct business could not have been timely assembled. That isn't true today, at any time, with daily air service available to Washington from anywhere in the United States. Senators who aren't in Washington during pro forma sessions are there because they can't be, but because the Senate decided they don't need to be. The President does not have Constitutional authority to question that decision.
Now, as to the substance: Obama is in the right, clearly and without ambiguity of any kind. The Republican majority in the Senate is obviously trying to prevent Executive Branch agencies lawfully established from functioning. In the Cordray case, Republicans are plainly intent on serving non-bank financial institutions that are large sources of campaign cash, because they are large sources of campaign cash. The fetid stink of individual and collective corruption that pervades the Republican Party today is certainly a legitimate issue for Obama to raise with the public. Calling the Senate back into session, while it was in even brief recess, to demand that it act on the many Executive Branch appointments now pending might have been an effective, and Constitutional, means for Obama to put the nature of the Congressional opposition to his administration on public display.
What Obama has presented as recess appointments are not such a means. I understand he is trying to get and keep individual agencies running while the legal issues are sorted out, but when the sorting out is finished Obama will have lost in the courts and will be back where he started. Into the bargain, the public will be confused as to whether Senate Republicans are trying to keep parts of the government from working (they are) or Obama is exceeding his Constitutional authority (he is). The course Obama has chosen has all the defects of direct confrontation with Senate Republicans without any of the benefits -- the main benefit, here, being clarity.
Update. I see that Jonathan Cohn has noted the same clip by Sperling; he has a good explanation of the politics and substance of the issue.