By Brendan Loy
Yesterday, I, a generally pro-Obama left-centrist, called Obama’s “non-recess recess” appointment of Richard Cordray an unjustifiable abuse of power. Now, here comes conservative/libertarian blogger Dale Franks, defending President Obama on the issue — “as distateful as it is to me.”
Here’s the blog post. It’s well worth a read if you care about this issue. Money quote:
At the very least, a colorable argument can be made that the mere existence of pro-forma sessions held for the specific purpose of disallowing recess appointments, during a time when the Senate is unable to meet to discharge its advice and consent functions, is itself an unconstitutional usurpation of the president’s Constitutional powers. There is nothing in the Constitution to indicate the president’s recess appointment power is any less important than the Senate’s advice and consent power.
“So it is far from clear,” Franks adds, “that it was the President, rather than the Senate, who was acting in a manner that violated the Constitutional separation of powers.”
Anticipating the obvious objection (“but Senator Obama participated in pro-forma sessions to block Bush appointments!”), Franks also notes:
Whatever the actual practice has been in terms of when presidents made recess appointments, or whether presidents in the past have accepted the practice of pro forma sessions, or even whether someone argued a different view about such appointments in the past, is entirely irrelevant. It might be instructive to know these things in order to make personal judgments about the character of the respective parties, but it has nothing whatsoever to do with the constitutional issues at hand.
I’m not sure if “nothing whatsoever” is quite right, but he’s got a point in that informal precedent and practice with respect to constitutional (or perhaps I should say “Constitution-related”) norms isn’t the same thing as a Supreme Court decision definitively interpreting the Constitution. Not by a long shot.
Anyway, read the whole thing. I don’t know if I’m totally convinced, but Franks does a better job defending Obama’s action than I’ve seen the president himself, or Jay Carney, or Nancy Pelosi, or anyone else on the Left do. Of course, whereas Franks is focusing with laser-like precision on the constitutional issues, those folks have to worry about “personal judgments about the character of the respective parties” — i.e., themselves — so they’re less likely to call attention to the details, and more likely to make broad-brush populist arguments that conceal the underlying point.
But if all that can be said about Obama here is that he’s being a hypocrite, and that he’s engaging in rhetorical sleight of hand to distract from that hypocrisy…well, that’s on par with noting that the Sun rose in the East this morning, and Grant is buried in Grant’s Tomb, and the SEC is a WAR!!! Obama’s a politician. Of course he’s a hypocrite, especially when it comes to matters of procedure. Virtually all politicians are. There is no moral high ground between the two sides when it comes to procedural matters. Everyone advances whatever argument suits their short-term interests at the moment. As someone who cares about procedure, I think that’s a damn shame, but it’s the reality.
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