New Gingrich Speaking at CPAC 2011. Flicker / Gage Skidmore

A recent political debacle over Obama’s recess appointments raises a fascinating constitutional question and highlights the troubling, aggressive relationship that has developed between the President and Congressional Republicans. This case offers an opportunity to also examine the behavior of Congressional Republicans and the party’s Presidential candidates.

Newt Gingrich has suggested that Republicans should prevent any further funding of the Labor Relations Board (LRB) and Consumer Protection Agency Bureau (CPAB) in response to Barack Obama’s recess appointments to these bodies. (A Recess appointment is when the President appoints an individual, on a temporary basis, while Congress is not in session thereby avoiding the need for Senate confirmation.) Congressional Republicans have already been trying to employ Gingrich’s suggested tactic of financial strangulation against the CPAB that was established as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act that Republicans roundly scorn. Senate Republicans have also filibustered any nominee to head the CPAB. While the other Republican candidates have not openly backed Gingrich’s idea, they have all condemned Obama for executive overreach and discussed the possibility of legal action. While hyperbolic, Republican complaints raise legitimate constitutional concerns about some of the specifics of this incident, they do not acknowledge the Republican role in motivating Obama’s bureaucratic maneuvering. Obama initially threatened the recess appointment for the head of the CPAB after Senate Republicans filibustered the motion to vote on that nominee or any other nominee to head that agency.

Republicans have inverted the concept of the power of the purse, which refers the Congress’s authority to apportion all government spending. By only preventing action rather than passing legislation to dictate federal spending, Republicans are holding the purse hostage to achieve their aims. Congress normally passes legislation to determine the distribution of funds. However in this case Republicans are preventing the passage of funding legislation – through inaction in the house or filibuster in the Senate – to destroy Congressionally established agencies. Republicans are intentionally paralyzing Congress because they do not have the votes to legislatively eliminate the LRB or the CPAB. They have deftly and effectively manipulated the rules of the Senate, but this tendency towards stubborn and aggressive bureaucratic manipulation cannot be a governing strategy. Obama was forced to make an unprecedented and perhaps unconstitutional move to do something as simple as appoint members to government agencies.

On January 4th Obama circumvented Republican efforts to eliminate the CPAB and the LRB, which Republicans have long scorned for its “pro-union bias.” House Republicans sought to modify a strategy used effectively by Harry Reid starting in November of 2007 to prevent George Bush from installing recess appointments that the Senate was refusing to approve. Reid held pro forma sessions – “a brief meeting of the Senate…in which no business is conducted” – so that no Congressional recess would be longer than three days. Many scholars believe that three days is the minimum length recess during which a president may make a recess appointment. The constitutional question did not arise in the Bush-Reid case because Bush did not try to make a recess appointment between pro forma sessions, which is precisely what Obama recently did.

House Republicans had refused to pass a senate motion to adjourn for recess, forcing the Senate to convene, as occurred in 2007, at least every three days throughout the winter break, theoretically preventing any recess appointments. The White House argued that those pro forma sessions do not count since no business is conducted. So, despite Congress’s failure to pass the motion to recess, the administration argues, Congress is not in session. White House and Congressional bureaucratic maneuvering is creating a growing antagonism between them, as well as an environment that encourages both to seek new constitutional ground to outdo the other. It is unclear whether Republicans will press Obama on the legality of the recess appointments, risking a constitutional crisis that will almost certainly need to be resolved by the courts. If congressional Republicans sustain their stubborn approach to governing, some sort of crisis will surely arise.

The constitutional language that establishes the executive authority to make recess appointments – Article Two, Section Two of the Constitution – is unclear enough that Republicans will likely hesitate before risking a public defeat to Obama in court. While Gingrich’s strategic alignment with the most confrontational elements in the GOP makes the prospect of his presidency particularly troubling, the prevalence of this obstructionist approach likely means that any Republican administration would be beholden to this radical constituency.

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