Posted Thursday, Jan. 5, 2012, at 9:12 AM
Yesterday, Barack Obama issues recess appointments for a new head of the Consumer Financial Protection Bureau and the National Labor Relations Board, but not for any other positions even though a great many nominees are languishing in the Senate without a floor vote. Near the end of last year, there was some sentiment in Democratic circles that Obama should launch an all-out war on GOP obstructionism with a huge raft of recess appointments. Some in the Treasury Department, tired of being understaffed, suggested that the CFPB and NLRB should be rolled into a comprehensive package to staff up economic policy positions, suggesting that Obama is attempting to wage all out war on joblessness and income stagnation while the GOP tries to tie his hands. Ultimately, the White House broke the other way picking a fight that's narrower than one about appointments and instead speaks to the continued existence of regulatory agencies created by duly enacted statutes.
As Brian Beutler explains the departure of Craig Becker from the NLRB "left the NLRB with only two sitting members — not enough, according to the Supreme Court, to constitute the quorum the board requires to function." Similarly, the statute creating the CFPB says it can't make legally binding regulations without a director in place. In both cases, Republicans were seeking to use their ability to filibuster nominees as a way to stealthily repeal laws they don't approve of without going through the hassle of assembling actual congressional majorities and getting the president to sign the repeal bills. The White House is seeking to challenge their ability to do that, without picking a broader fight about the general legitimacy of routinely holding up appointees.