Arguing Against Personal Interest
The best time to argue for general principles is when they work against one's own interest, to firmly establish that they are indeed principles rather than political opportunism. Two examples:
First, from a topic rife with political opportunism, the Supreme Court a three-judge panel recently ruled Obama's NLRB not-really-recess appointments were unconstitutional. I think that was the right decision, but a President has got to be able to get an up or down vote in a timely manner on appointments. As much as I would love to see all of Obama's appointments languish for, oh, four years or so, and as much as I really don't like his activist NLRB, having to resort to procedural hacks of this sort just to fill administrative positions is not good government. The Senate rules (or traditions as the case may be) that even one Senator may put a hold on confirmations is simply insane. While I am a supporter of the filibuster, I think the filibuster should not apply to certain Constitutionally mandated activities. Specifically: passing a budget and appointment confirmations.
Second, readers of this blog know how much I dislike our sheriff Joe Arpaio. He was unfortunately re-elected a couple of months ago, though the vote was closer than usual. This week, an Arizona group who also does not like Joe has announced it is going to seek a recall election against him. Again, as much as I would like to see Arpaio ride off into the sunset, this practice of gearing up for recall elections just days after the election is over is just insane. It is a total waste of money and resources. While I don't like to do anything that helps incumbents, there has to be some sort of waiting period (perhaps 1/4 of the office term) before we start this silliness.
NormD:
It was not the Supreme Court! It was the a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The case will be appealed to either the full court or the Supremes. The final word is not in.
February 1, 2013, 4:59 amMatthew Slyfield:
A review by the full DC Circuit panel is unlikely to overturn the decision. The DC circuit is understaffed due to the appointments mess and because of that the remaining sitting judges for the full panel would all have to come down unanimously against the decision for it to be overturned.
February 1, 2013, 7:24 amnehemiah:
The question is whether the White House will accept the decision as it pertains to that that particular case while ignoring the broader implications, or will they appeal? I think they ignore because they'd get a smack down from SCOTUS.
February 1, 2013, 7:25 ammesaeconoguy:
When you are a rulemaker, be it congressional, executive, or other, one of the perks is that you get to make rules, which can be used to circumvent or tie up other rules.
Both parties have used the political hackery of procedural opening & closing of business, as well as the threat and active use of filibuster, and these are perceived as "unfair" by both sides at different times, depending on whose ox is being gored at the time.
Ignorance and stupidity are bipartisan, rejoice in the spirit of cooperation.
February 1, 2013, 7:43 ammesaeconoguy:
I am hearing they will appeal, because they have too much at stake.
One of the important side effects of this ruling is that the legality of Richard Cordray’s recess appointment to the new (unconstitutional, unaccountable) CFPB is now in doubt.
That has wide ranging regulatory effects for banks, and potentially other areas, such as money market mutual funds.
February 1, 2013, 7:47 amNormD:
This may be true, but Coyote needs to get his facts straight. The Supremes could overturn. I don't want them to, but its possible. If the Supremes uphold the decision (as they should!), the implications are staggering. Thousands of pages of regulations would be thrown out in a heartbeat.
February 1, 2013, 7:48 amjohn mcginnis:
"... but a President has got to be able to get an up or down vote in a timely manner on appointments. As much as I would love to see all of Obama's appointments languish for, oh, four years or so, and as much as I really don't like his activist NLRB, having to resort to procedural hacks of this sort just to fill administrative positions is not good government. ..."
Recess appointments were designed in an era of horse and buggy and a congressman to get from rural Kentucky to DC could take 2-3 weeks one way and Congress was only in session half the year. These days Congress is in session near continually.
But let us not wax pain for Obama for much of the `the board can't function` is of Obama's own doing. Two of the appointees were not offered to the Senate for review until Dec 15, 2012! only days before the Senate was to adjourn. Then a week later he executes the appointments. That's like booking a flight 24hrs ahead, that you know is habitually overbooked, then complaining that you are not being comped for food and beverages at the flight lounge when you get bumped.
Obama moved to specifically target avoiding the confirmation process just so he could set precedent. Having not been challenged Obama would then have the wherewithal to bypass Congress for other secondary level appointments That should scare you, not feel sorry for the guy.
February 1, 2013, 7:57 amjohn mcginnis:
Just for clarity, SCOTUS does not even have to act to have the lower court action stand. The SG would have to bring appeal and SCOTUS would have to accept.
February 1, 2013, 8:00 amjohn mcginnis:
Whether SCOTUS takes up the NLRB case maybe rendered moot -- http://freebeacon.com/no-confirmation-no-paycheck/ -- bill is being proposed to suspend pay for all those who were confirmed. That's important in that even if SCOTUS took up the case, SCOTUS has given Congress great latitude in matters associated with spending under its taxing and spending review authority.
February 1, 2013, 8:15 ammesaeconoguy:
Yes, but legality of Richard Cordray's recess appointment is now in question, as is the overall constitutionality of the CFPB, which is not under Congressional purview as constructed. It is literally extra-constitutional in that Congress has virtually no oversight of the bureau.
That could trigger action.
February 1, 2013, 8:43 amBob Smith:
As I recall several of the affected appointees have publicly proclaimed they're going to ignore the court and keep rulemaking anyway. Not surprising, since Obama has established that he's ok with ignoring Congress and Federal law when it suits him. They're just imitating the boss.
February 1, 2013, 9:52 amap:
I had a vague recollection that a limit on how soon after an election a recall could occur was put in after the United Farm Workers tried to recall Jack Williams, back in the 1970s. I checked. A person cannot be recalled until they have served six months.
February 1, 2013, 12:41 pmMatthew Slyfield:
"Thousands of pages of regulations would be thrown out in a heartbeat."
The likely hood that this decision even if upheld will be applied retroactively to overturn the decisions of any agency are close to nil. It would be nice, but don't get your hopes up.
February 1, 2013, 2:17 pmbigmaq1980:
"Obama moved to specifically target avoiding the confirmation process just so he could set precedent"
He's not the only one to do this, but yep, hard to just focus on one abuse and not take the other side of the equation into account.
As crazy as the brinksmanship negotiations have been (e.g. the fiscal cliff, the debt ceiling), they largely stem from the fact that a proper budget has not been put to a vote on the Senate floor for some time, even though it is a LEGAL REQUIREMENT to pass a budget annually (there is no legal consequence in failing to do so). So the negotiation has to occur outside of the normal deliberative processes that were designed as a means for a check and balance - instead we get Continuing Resolutions that effectively "lock in" the $1T+ deficit spending. This context gets "conveniently" forgotten in the media, making it look like only one party is being "obstinate".
February 1, 2013, 5:25 pmbigmaq1980:
Warren, you also forgot to mention the recall election in Wisconsin.
The problem is that for every law, there is the potential to abuse it. I have less concern for recall elections (not easy to pull off), than I do with the ease that Presidents have had to stretch their authority and circumvent Congress, both in the spirit of and the technical aspects of the law.
February 1, 2013, 5:31 pmNormD:
Under what legal doctrine would illegal laws be allowed to stand??? Convenience? The "it would be a lot of work to undo all that stuff we did" doctrine?
February 1, 2013, 5:55 pmMatthew Slyfield:
First we are talking about regulations not laws. You are assuming that those regulations implemented under prior recess appointees would be deemed illegal. These kinds of decisions are rarely applied retroactively so recces appointees from past administrations would not be considered illegal. Therefore any regulations implemented by prior appointees will NOT be considered illegal.
At best, if the NLRB decides to continue conducting business ignoring the DC Circuit decision and they loose on appeal then any decisions they make between now and then will be void. But that's it.
February 1, 2013, 10:10 pmNormD:
I think you are confusing "normal" recess appointments, ie, those made when the Senate is actually recessed vs the these odd recess appointments which were made when when the Senate was not recessed. I understand that the court said all recess appointments are invalid This is probably the correct constitutional opinion, but there is too much water under the bridge to change it at this late date. As long as the finding is restricted to these odd recess appointments I don't see the problem.
February 2, 2013, 7:59 amNormD:
Since the opinion found all recess appointments suspect, I think SCOTUS will have to take the issue.
February 2, 2013, 8:00 amjdgalt:
That's an interesting question for the lawyers among us. Does the court's ruling mean those appointees are not on the NLRB and never were? Or does separation of powers make it impossible for any court to fire members of an executive-branch agency?
You're right about Obama, though -- at some point either Congress is going to have to be willing to impeach him, or he will effectively be King.
Re. the recall: I don't see it as a waste of time, because the turnout for a recall election tends to be both smaller and slanted against the official being recalled. California recalled Gov. Gray Davis only 10 months after reelecting him. (Granted, Schwarzenegger wasn't much better.)
February 2, 2013, 8:44 amMatthew Slyfield:
You made the claim "Thousands of pages of regulations would be thrown out in a heartbeat." Why? What regulations? On what basis?
You seem to be making the argument that standing regulations will be overturned on the basis of "illegal" recess appointments made during prior Presidential terms. That is NOT going to happen. If you even tried to make that argument the court is going to say that the DC Circuit decision does not apply retroactively. Such appointments are "illegal" ONLY from the point of the DC Circuit decision going forward.
Sorry, It might actually be nice if that idea had a chance in court, but it doesn't.
February 2, 2013, 3:08 pmNormD:
"You seem to be making the argument that standing regulations will be overturned on the basis of "illegal" recess appointments made during
prior Presidential terms."
I have never ever said this. In fact I have said exactly the opposite. You need to read more closely before responding.
The CFPB just issued 3000 pages of regulations regarding what is a safe mortgage
http://www.aei-ideas.org/2013/01/obamas-consumer-finance-agency-just-handed-down-3000-pages-of-new-mortgage-lending-rules-now-a-lesson-on-unintended-consequences/
The law that created the CFPB required that regulations could only be issued AFTER the Director was legally confirmed. If he was not legally confirmed then all of these regulations are null and void.
February 3, 2013, 9:18 amalbkmb:
I learned after our round with silliness here in Wisconsin that a politician must be in office for one year after an election before a recall can be initiated against them.
February 5, 2013, 11:54 am