In a move which will surprise approximately no one who’s been paying even the slightest bit of attention since 2006, when the Democrats re-took control of congress, the House GOP signaled yesterday that it would use a parliamentary procedure which prevents either house of congress from going into a recess longer than three days without the consent of the other house.
How can House Republicans force the Senate not to adjourn? Republicans, always on the lookout for ways to deny President Obama and the Democrats their due authority and legislative goals, have discovered and are utilizing a never-before-used-in-this-way provision of the constitution, Article I, section 5, clause 4, which reads:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
This means even though Democrats are still in the majority in the Senate, Harry Reid cannot simply adjourn the Senate for the holiday break (during which time President Obama could recess-appoint some of the blocked nominees the GOP has been filibustering). Instead, the Senate will hold a pro-forma session every three days which will last no more than a couple of minutes, but which is long enough to prevent the Senate from considering itself in recess for the entire month-plus between yesterday and January 23. In short, what this means in practice is: President Obama will not be able to recess-appoint Richard Cordray to the CFPB.
Unless Mr. Obama is willing to take steps of his own, also granted to him explicitly by the constitution. Specifically, Article II, section 3, clause 3, which reads:
[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The constitution is an astonishing document. Although the framers could not foresee everything which might come to pass in the future, they did in an amazing number of instances have an uncanny insight into human nature as applied in the political process, setting up our justly-vaunted system of checks and balances. Most people, when they hear of checks and balances, think of the separation of powers into three branches of government, with good reason. But the framers’ clear desire not to have the government shanghied by any faction using the law as a procedural weapon for subverting the will of the people or the balanced operation of government, can be seen in many smaller and less famous portions of the constitution, as well. This is definitely one of them.
Everyone knows the framers were considerably worried about the re-imposition of a monarchy. That’s why they gave the President considerable power but made him or her subordinate to congress in many key areas. Conversely, however, the framers had already (in the late 1700s!) seen enough of legislative grandstanding, gridlock, treachery and abuse in Europe that they also were able to foresee the kind of shenanigans that might ensue in a body so large and diffuse in responsibility as congress. So they put little mini-checks and balances directly into our constitution so the President, while he could not and cannot simply ride roughshod over congress, can use power specifically granted to him to break up such ideological and legislative logjams.
I’ve written extensively already about the self-professed need of the Obama administration to have a competent, pro-consumer director of the CFPB. The administration themselves has highlighted this need, and I agree 100% with their reasoning. Now, as every alert onlooker has observed already, the time has come for the White House to put up or shut up about this desire. The Republicans have opened the door by using an obscure provision of the constitution to jam up the Senate majority into accepting the will of the OTHER chamber. Now, President Obama can and should allow the houses of congress to function as the framers intended them to. He has the explicit authority to force the Senate (and House) into adjournment, during which time recess appointments can be made. Even the GOP Senators don’t assert that Cordray is unfit to helm the CFPB; they simply don’t want the CFPB itself to exist. Too late. They already lost that battle, and their unprecedented obstructionism must be met with equally unprecedented obstruction-removal.
Break the logjam. Adjourn congress for the holidays. Recess appoint Richard Cordray so he can begin protecting consumers from fiscal predation. Obstructionism delenda est!