WHAT JUST HAPPENED? EZRA KLEIN EXPLAINS

Ezra Klein
via Wonkbook at
WashingtonPost.com

Washington, D.C.-- The straightforward interpretation of Wednesday's controversial recess appointments is that they were just another salvo in the ongoing war being waged by the Obama administration and congressional Republicans over nominations.

In this view, what's interesting is that Republicans were blocking a record number of appointees and using continuous "pro forma" sessions -- that is to say, keeping Congress technically in session despite the fact that most everyone has gone home -- to deny President Obama the power to make recess appointments. In response, the Obama administration is taking the position that, legally speaking, pro forma sessions are recesses -- the Constitution is very vague on what is and isn't a recess -- and is making recess appointments anyway. If Republicans disagree, they can take him to court. Congress-expert Sarah Binder thinks, for the record, that they'll lose that case.

The less obvious, but perhaps more true, interpretation is that Wednesday's appointments are a salvo in an ongoing war over a controversial tactic that's Thomas Mann has dubbed "a modern-day form of nullification.”

Obama made four recess appointments on Wednesday. One of them lifted Richard Cordray to head of the Consumer Financial protection Bureau. Another added three members to the National Labor Relations Board. But despite having hundreds of nominees outstanding -- including for important positions like the Federal Reserve's Board of Governors and the FDIC -- Obama didn't pull a Teddy Roosevelt and make 160 appointments on the same day. Why? What makes these four nominees different from all other nominees?

The answer is that, without them, the institutions they're intended to lead will fail. Obama's maneuver was about the agencies, not the appointees. In the absence of a director, the CFPB can't exercise its powers. The expiration of Craig Becker's term on the NLRB, meanwhile, means the board is about to fall from three members to two members -- a number that the Supreme Court has ruled is less than a legal quorum, and so a number that means the NLRB cannot make binding rulings.

This is not an accident: Republicans have straightforwardly argued that they would obstruct the confirmation of any and all nominees to the CFPB until the Obama administration agreed to radically reform the agency. They were, in other words, using their power to block nominations to hold kill or change agencies that they didn't have the votes to reform through the normal legislative order. Much the same has been happening at the NLRB. A That's what Mann means when he invokes "nullification": just as the original nullification crisis was about states refusing to implement federal laws that their representatives did not have the votes to overturn, the modern-day incarnation features Republicans refusing to implement laws they don't have the votes to overturn. And this is what Obama is fighting.

As Brian Beutler puts it, Obama's maneuver "does more than fill vacancies. It actually restores the power the agency was given under the law — power Republicans were hoping to strip without passing new legislation. That’s the key thread connecting these recess appointments — and why other languishing nominees haven’t been recess appointed." So though Obama is setting a new precedent with this move, it's not clear that the precedent he intends to set is related to the obstruction of nominees. Rather, it seems related to Republican attempts to use the nomination process to undermine agencies they dislike.