Tag Archives: ethics

Recess Appointments and Trust

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President Obama has, in the past, criticized President Bush’s alleged tendency to push Constitutional limits in seeking to expand Executive Branch power.

Now we come to some “recess” appointments, made because Republicans allegedly were blocking Senate confirmation.  Michael McConnell, writing for Advancing a Free Society, offers some insight.

First, the present set of appointments (to the CFPB and to the NLRB) were made while the Senate was in session through a series of pro forma, short sessions, ostensibly for the purpose of blocking recess appointments.  The use of pro forma sessions for this purpose was a tactic devised in 2007 by Senate Majority Leader Harry Reid (D, NV) and then-Senator Barack Obama (D, IL) specifically to prevent Bush from making recess appointments.

Second, ex-University of Chicago Constitutional Law Professor Barack Obama appears to have acted without legal advice other than his own: even his own Office of Legal Counsel, the body intended to advise presidents ahead of time on the legality of an action (and note that this is advice; OLC opinions are not law and are not binding), didn’t issue their opinion justifying Obama’s appointments until two days after the appointments had been made.  McConnell is more generous than I, suggesting that “presumably it reflects the advice given to the President in advance.”  I have my doubts.

Third, there are a number of legal arguments that suggest that Obama’s appointments are, in fact, unconstitutional, all centering on the fact that, as Reid and Senator Obama understood in 2007, the Senate actually has to be in recess before recess appointments can be made.  McConnell offers the following.

Obama and his pet OLC insist that since the Senate had announced an intention of conducting no business during its pro forma sessions, it was, in fact in recess.  Never mind that Obama signed into law at least two pieces of legislation that had been passed during those sessions, including the infamous payroll tax reduction extension.  This is old news.  McConnell offers new insight, though:

It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so.

McConnell goes on:

[T]he Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other  and that Congress convene on January 3 unless a law has provided for a different day…. Why a pro forma session would count for some purposes and not others is a mystery.

And there are other, longer-standing demonstrations of the illegitimacy of these appointments.  For one thing, the NLRB “nominees” hadn’t even been proposed to the Senate until two days prior to their previously announced, well publicized, ordinary holiday break, which the Senate then voluntarily gave up in order to remain in (pro forma) session.  The only one who was blocking Senate confirmation here was the President.

Also, we get the strange concept that the President can decide for himself when the Senate (or, by extension, the Congress) is in session, the Senate (or the Congress) not being competent to make that determination for itself.  Certainly, the President can adjourn both houses when they cannot agree between themselves on adjournment and ask him for help.  Certainly, the President can call the Congress into session to deal with emergencies.  Deciding that they actually have convened—or not—seems a bit of an expansion of Executive Branch power.

Where’s the love?  Where’s the trust?  Hmm….

The New Bipartisanship

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Here it is, in black and white.  First we have Senate Majority Leader harry Reid (D, NV) advising his Republican opposition that they must “leave Tea Party ‘extremism’ behind and ‘learn what legislation is all about.’ ”  Reid goes on to insist that

Legislation is an art of working together, building consensus, compromise. And I hope that the Tea Party doesn’t have the influence in this next year that they had in the previous year[.]

and

I don’t think…anyone can question or they should question our having reached out to Republicans[.]

Of course, he’s silent on the House-passed budget that he’s refused to let see the Senate floor for debate for more than a year.  And he has nothing to say about any of the 20-something jobs-related House-passed bills that he’s similarly actively blocking.  Who’s refusing to talk?

Then we have this from President Obama:

…recess appointments last week of Richard Cordray at the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board—even though the Senate was not in recess….

Obama’s own Assistant Attorney General Virginia Seitz knows these are unconstitutional:

The question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments[.]

Obama made the appointments were made, anyway.

Finally, there’s this from one of the Progressives’ party organs:

‘Why Are Obama’s Critics So Dumb?’

together with this image from Newsweek‘s own proud tweet:

Clearly, the American people are extremists who don’t know they’re supposed to compromise and accept the Progressives’ every wish, and if one side can’t get its way, they’ll just ignore the law and go ahead, anyway.  Oh, and we’re all just dumb, so our views don’t matter, anyway.  Which sort of renders unimportant all us extremists: we don’t know what we’re doing.

On Shrinking Government

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This should be, in principle, an Obama move that we can support.  Of course, the devil will be in the details, and this “shrinkage” is pretty trivial—only a reduction of 2,000, or so, civil servants out of a total Federal work force of nearly 4.5 million, and a cost reduction of walking around money—$3 billion over 10 years.  But it’s a start, and if we wait until the last step has been mapped out to a gnat’s patootie, the journey will never start.

What the President wants to do in the present case is consolidate some unnamed Commerce “core business functions” with the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation and the Trade and Development Agency.

His idea has been under consideration for some time, but one objection to it is one that this poor, dumb Texas boy doesn’t understand.  Those earlier thoughts had also included moving the NOAA from Commerce to Interior, but there was “resistance internally to moving it to the Interior Department.”  The boss said to move, so off they go.  Where’s the problem?

Maybe, while we’re at it, we could also eliminate the EPA and the President’s Office of Legal Counsel.  Oh, wait….

The mechanics proposed are interesting, too, and are the real reason for my initial support (subject to satisfaction with the details, as always).  With this initial consolidation permission, the bill if passed, would let the President propose other reorganizations of his Executive Branch and require the Congress to give it an un-amended, up or down vote within 90 days.  Thus, the President gets more flexibility over the structure of his Branch, and the Congress retains its present power over the structure of the Federal government, including the Executive Branch.

However, the ability for either party to stall and to posture for political gain would become much more difficult.  And the members of Congress would have to be on the public record, in front of their constituents, for their individual decisions on the reorgs.  Moreover, amendments remain eminently possible: the pre-proposal dickerings that should be occurring anyway would get objections worked out, and the necessary modifications to satisfy the reasons for a down vote would constitute such amendments as well.

This wants a close look, devoid of political imperatives on both sides.

Progressive “Fact” Reporting

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It would seem that Progressives and facts only cross paths accidentally.  Power Line has this exchange between the evil Koch Company’s Director of Corporate Communication for Koch Companies Public Sector, LLC, Melissa Cohlmia and The New Yorker‘s Deputy Editor, Pamela Maffei McCarthy.  It’s a long-ish post, but it’s well worth the read.

In summary, though, The New Yorker seems incapable of recognizing a fact, even when confronted with one in short, simple words.  Moreover, while pretending to be willing to correct another error, The New Yorker openly refuses to do so, unless the victim of their error supplies other facts to satisfy the magazine’s disinegenuous fishing expedition.

I have to wonder why anyone would waste the money on a The New Yorker subscription.

Federal Subsidies

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The Department of Education, in its First Year Progress press release concerning the Federal Race to the Top subsidy program, asserts

The 12 state-specific reports provide summaries of accomplishments made and setbacks experienced by states in pursuing reforms around Race to the Top’s four assurance areas—raising academic standards, building robust data systems to improve instruction, supporting great teachers and school leaders….

That’s a lot of bureaucracy, without a lot of actual performance.  To be sure, the rest of the claim from the DoE excerpt above includes “…and turning around persistently low-performing schools.”  Let’s look at DoE’s own individual reports to see how accurate that claim is, along with their introductory claim that

[t]hese twelve states have acted with courage and commitment in taking on ambitious education reform. Their year one work has helped lay the foundation for long-term, statewide improvements centered on doing what’s best for students.

DoE’s assessments of the first year belie those rosy words.  The Wall Street Journal reports that three of those 12 states have been explicitly called out for failure to perform in accordance with the promises they made in order to get this Federal subsidy.

U.S. Secretary of Education Arne Duncan warned New York state…to deliver its promise to overhaul teacher evaluations and develop a comprehensive student data-tracking system or risk losing hundreds of millions of dollars in federal grants.

and

…Hawaii…is now required to get federal approval before spending any of the $75 million it won.

and

Florida has also been criticized.

Florida was criticized for being seriously behind its promised time and budget schedule for getting on with its promised actions.  In fact, Florida has simply issued a string of excuses so weak that even Duncan couldn’t look past them.

I don’t expect perfection out of a government program, or any other human endeavor.  But I do expect far better performance from a government program, funded as it necessarily is, with our money—in this case, with $700 million of our money.  However, as Joy Pullman notes in The Weekly Standard, “the federal government isn’t good at a great many things—particularly education.”

Or at getting efficient results through subsidies generally.