Government by loophole
Is President Obama setting a worrying precedent by overruling Congress’s intention to remain in pro forma session to recess appoint consumer-finance chief Richard Cordray? Absolutely. Liberals would be hitting the roof if George W. Bush did this. Has Congress been creating a worrying precedent by blocking record numbers of appointments and holding continuous pro forma sessions in order to deny the president his traditional power to make recess appointments? Without doubt.
You can get the gory procedural details from Brad Plumer, but I would observe that this is a further descent into government by loophole: One side figures out how to twist the rules to their advantage, the other side twists a different rule in response, and soon enough, you have a war of procedural interpretations rather than a vote on the floor of both chambers of Congress.
You see it with the filibuster. Republicans mounted more filibusters between 2009 and 2011 then there were in the 1950s, 1960s and 1970s combined. In response, Democrats finished health-care reform through the filibuster-proof budget reconciliation process. Republicans called the maneuver unprecedented. Democrats called the filibusters unprecedented. Minority loophole? Meet majority loophole. And the outcome was a worse bill that took more time to pass.
Now you’re seeing it with appointments: Republicans block a record number of appointments and enter continuous pro forma sessions in order to deny Obama recess appointments. The numbers tell the tale: Ronald Reagan made 243 recess appointments. George W. Bush made 171. So far, Obama has made 29. In response, the Obama administration breaks from precedent and declares pro forma sessions to be no obstacle to recess appointments. Minority loophole? Meet majority loophole.
This is no way to govern. Bills should pass either by 60 votes or 51 votes, but not by both. The president should be able to unilaterally make appointments or be unable to unilaterally make appointments, but not both. As we’ve trended towards more loophole-driven minority obstruction in the Senate, the majority has tried to assert its will through loopholes. But the result is an increasingly unpredictable and opaque political system that doesn’t work well for anybody.