Republicans Aren't Filibustering Obama's Consumer Protection Nominee. They're "Nullifying" the Job Itself.

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Dec. 8 2011 6:36 PM

Obama’s Nullification Crisis

Can the president outwit Republicans who want to filibuster his nominees out of existence?

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The irony is that the urge to nullify troublesome government posts is turning more people into “czars.” The Centers for Medicare and Medicaid Services is supposed to be led by a Senate-confirmed appointee. In 2011, this leader was Dr. Donald Berwick, a man who once said that the future of health care would “of course” involve rationing. Senate Republicans pledged to filibuster him. He got a recess appointment, served out a partial term, then left. Republicans (led here by Sen. Jon Kyl) argued that the administration was afraid of a “debate” about rationing, as if Republicans weren’t going to filibuster Berwick when that hypothetical debate was over. The Independent Payment Advisory Board, the Fed-like organism that would ration care, hasn’t been staffed yet—Republicans have said they won’t confirm people to serve on it.

I asked Lugar how IPAB would be affected if no one was confirmed to it. “There’s always the possibility of filling these jobs during a recess,” he shrugged. But perhaps Lugar doesn’t even need to worry about that possibility. Since the end of May, the Republican-run House has effectively ended recess appointments. How? By simply refusing to go into recess.

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This isn’t a new idea. When Democrats took the House and Senate in 2006, they declined to pass adjournment resolutions during breaks. Keeping Congress in “pro forma sessions” turns out to be easy—you send a member from Virginia or Maryland in to bang the gavel every third day, and voila, no recess. Republicans aren’t saying anything on the record yet about how they’ll handle the end of the year, when there’s typically a short recess to mark the interregnum between sessions. (There’s a chance that the payroll tax fight could drag on longer than they planned.) We do know what they’re allowed to do. The House could refuse to adjourn until the moment before the next session begins. On Jan. 3, at 11:59 a.m., it could end the first session of the 112th Congress; at noon, the second session would begin. No time for a recess. No way for Obama to appoint someone to the CFPB or anything else.

Are there ways for the administration or Senate Democrats to get around this? There are theories, and the political scientist Jonathan Bernstein has been collecting the best ones. ThinkProgress judicial blogger Ian Millhiser has called for Obama to use “the Teddy Roosevelt precedent” and copy what the original progressive did in 1903, when a half-day recess turned into an orgy of 160 appointments. What would prevent the White House from hitting “print” on the news that it had appointed Richard Cordray a few seconds after 11:59 a.m.?

McConnell spokesman Don Stewart dismissed that idea. In the “modern era,” he pointed out, no president has made an appointment during a recess lasting less than 10 days. The strong hint: If Obama tries to pull that move, he’ll be breaking all acceptable precedents. He’ll be using a nuclear option, staging a constitutional crisis. The Republicans? Why, they’re only nullifying the jobs that shouldn’t exist in the first place. And as far as the GOP is concerned, it’s easy to win a stare-down if the other guy always blinks.

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