Yesterday I quoted Laurence Tribe's argument -- with which, from a non-lawyer standpoint, I agree -- that the Obama Administration did the right thing in moving ahead with recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. Obama did so despite the Senatorial ruse of "pro forma" sessions, lasting a minute or two, which are designed specifically to thwart the recess-appointment power.
A case worth considering on the other side -- ie, not just a reflex denunciation of "an unprecedented power-grab to impose a socialist agenda on America" etc -- comes today from another eminent professor, Bruce Ackerman of Yale, in the LA Times. He makes the point that while today's Senate Republicans have pushed the obstruction-and-nullification campaign to a new extreme, they are using a tool first introduced by Democrats under George W. Bush -- although at that point, the Democrats held a majority in the Senate, unlike today's Republican minority. Ackerman says that Obama is obliged to resist this over-reach, but he should find a way to do so that doesn't lead to further distortion of Executive-Congressional relations and even worse dysfunction in the long run. Eg:
In the present standoff... 45 [Republican Senators] have said they would reject all other nominees for that [CFPB] position until the president agreed to fundamental changes in the Dodd-Frank law that organized the new bureau. If Obama can't respond to this Republican blockade with a recess appointment, he has no way to fulfill his constitutional responsibility to "take care that the laws be faithfully executed."... But he has chosen the worst possible way to launch his attack.
And Ackerman goes on to explain why he thinks that is so and what Obama should do instead. Meta-point: in the short run we're talking economic and regulatory policy and the contest between Obama's Democratic party and Mitch McConnell's Republicans. But in the long run the questions about Senate performance, and about claims of Executive power in response, bear on whether and how our Constitutional scheme of "checks and balances," which will celebrate its 225th birthday this year, can adapt for viable function in modern circumstances.
Bonus Freudian slip item:
Yesterday I quoted a former staff member for a Republican U.S. Senator on the whole Obama-v-McConnell question. He said, in passing, "The Republican majority in the Senate is obviously trying to prevent Executive Branch agencies lawfully established from functioning. In the Cordray case..."
A reader in the Middle East wrote in with this catch:
"The Republican majority in the Senate is obviously..."
So not only do they get to filibuster as a minority and roadblock the system (allowing the press to proclaim "defeat" on measures passed by the majority), now the Republicans are deeming themselves to have an actual majority! "Perception is reality"
Obviously just a typo by the former staffer, but an interesting one.