Senate Republicans and Some Scholars Find Problem Where None Exists

And Ignore Problem Where It Does Exist

President Obama has done the nation  a great service by recognizing the sham session of the U. S. Senate as a sham and using his Constitutionally provided power to make appointments to government positions.  When the Constitution was written Congress was not in session for long periods of time, and travel to the nation’s capital took weeks.  So the Constitution provided that the President could make appointments that normally would be subject to Congressional confirmation without having that confirmation when the Congress was not in session.  The appointments can only be for a limited amount of time.

Like everything else, politicians have perverted this very logical provision for their own partisan needs.  It started with Democrats (political perversion knows no party boundaries). 

Senator Harry Reid of Nevada, the majority leader, began using pro forma sessions, lasting just seconds, in late 2007 to keep the Senate nominally in session and prevent President George W. Bush from making recess appointments.

And Democrats did thwart President Bush by refusing to consider even voting on many confirmations.

In the two years that Mr. Bush had to contend with a Democratic Senate, 740 of his 981 nominees for civilian positions were confirmed, a rate of 75 percent. 

Republicans though have taken the tactic to an entirely new level

During the 112th Congress, 285 of Mr. Obama’s 503 civilian nominees have been confirmed, or 57 percent, according to Senate statistics.

All of this is part of an electoral strategy by Republicans; prevent to the maximum extent possible government functioning, and then blame Democrats for a dysfunctional government.  Here’s some of the evidence.

In all, 18 Obama nominees have withdrawn their names after their nominations languished for months. For example, Peter Diamond, a Nobel Prize winner in economics, could not get a vote to join the Federal Reserve Board, and Terry Garcia, a top official at the National Geographic Society, gave up on his nomination to be deputy commerce secretary.

Another nominee, Caitlin J. Halligan, spent more than 280 days awaiting a vote on her confirmation to the Federal District Courtin Washington before it fell to a filibuster.

People still awaiting Senate action include nominees to be under secretary of the Treasury for domestic finance, deputy commerce secretary, deputy secretary of housing and urban development, federal housing commissioner, head of the Corporation for National and Community Service and assistant attorney general for tax policy. Senate Republicans made clear that they would use the filibuster to prevent anyone from being confirmed to lead the Consumer Financial Protection Bureau unless the law that created it in 2010 was altered to dilute the director’s power or increase Congressional control.

So with the Senate in a sham session (no one is present, no business is being adopted, nothing is being done) the President has declared the Senate to be in de facto recess and has made recess appointment.  Good for him.  When the Constitution was being written it never, ever occurred to the Founders that the Senate would act this way.  They saw a system where the President would submit a nomination and the Senate would debate and then vote on the nomination.  It would have been inconceivable to them that "not voting" was an option, because the Founders saw government as public service, and could not imagine anyone in office not carrying out their duties for purely partisan political means.

While some people have called this a Constitutional crisis, the reality is that the President has done the country a great favor.  The issue will go to the courts, and then be resolved.  Either the sham session to prevent recess appointments will be legalized or it will not.  Either way the country will then have an opportunity to move to correct the problem, and allow Presidents of both parties to staff their administration with the people they see fit.

Of course, the gods of political irony cannot leave the issue untouched.  Vice President Dick Cheney was probably the greatest champion of Unconstitutional activity the White House has ever seen, yet an aide said this

But David S. Addington, former chief of staff to Vice President Dick Cheney, said all of that was beside the point. The president, he said, violated constitutional law.

“I’m kind of surprised he did it, because more so than most presidents, this guy has a personal ability to assess the constitutional implications,” Mr. Addington said, referring to Mr. Obama’s experience as a teacher of constitutional law. “It’s flabbergasting and, to be honest, a little chilling.”

Wow David, where were you when the country really needed you?  But congratulations on becoming a finalist of "American Hypocrit".