January 5, 2012

“UNPRECEDENTED.” “A power grab.” “A flagrant contempt for the rules.” Such were the howls from many on the right after President Obama this week used recess appointments to install a new director at the Consumer Financial Protection Bureau and to reconstitute the National Labor Relations Board (NLRB) with three new members.

These agencies are controversial to begin with, and any move to promote their mission would have been met with strong opposition. In this case, however, critics argue that the president did not have the authority to make such appointments. Their proof? Every three days or so, a lone senator enters the chamber and gavels in a seconds-long, pro forma session; a bipartisan agreement mandated that the sessions would proceed “with no business conducted.” With the Senate in session, critics argue, the president is prohibited from exercising his power to make recess appointments. Some also note that neither chamber can adjourn without the consent of the other. Lawmakers left for the holidays without such an agreement.

Democrats first used these tactics during the latter days of the George W. Bush administration. The practice continues because Republican leaders are intent on turning the tables on Mr. Obama.

No court has addressed the question of whether a president is precluded from making recess appointments during pro forma Senate sessions. But we believe the president’s action is justifiable, as former Bush Justice Department officials Steven Bradbury and John Elwood argued persuasively in an op-ed in 2010, when the situation was similar (though not identical) to today’s.

The Constitution vests the president with the power to fill vacant executive- and judicial-branch slots when the Senate is in recess. This power should not be undermined — indeed, nullified — through the use of ploys. To argue that phantom pro forma sessions render the Senate “open for business” is to defy common sense. The same holds true for the fiction created when lawmakers head out of town but decline to formally acknowledge an adjournment.

Republicans may well be correct that Mr. Obama is playing politics with these appointments. He announced the Cordray appointment during a stump speech in swing-state Ohio, where he railed against Republican obstructionism. His supporters in organized labor will no doubt be pleased that he filled the slots on the NLRB.

But so what? Both the consumer bureau and the labor relations board are agencies of the U.S. government, created by Congress, and it is inexcusable that congressional obstructionism would leave them unable to function. If Republicans don’t like the structure or purpose of either agency, they should try to alter them through legislation. Meanwhile their filibustering against qualified nominees to make political points or extort concessions from the White House cripples government and discourages good people from serving. That is the real poisonous practice, in which both parties have engaged. Until there is a de-escalation, the country will continue to pay a high price.