Obama’s non-recess appointments herald more bickering post-2012

There exists a hope that this November’s elections, with such a stark divide between Democrats and Republicans on many issues, will provide some political clarity for at least a couple of years. There’s a chance that comes to pass. Yesterday’s actions by President Obama, however, suggest the more likely outcome is an even nastier, dysfunctional Washington.

I’m talking about Obama’s appointment Wednesday of four officials: three to the National Labor Relations Board, and one as head of the Consumer Financial Protection Bureau, created by the Dodd-Frank financial reform law. He styled these as “recess appointments.” Which wouldn’t be problematic if Congress were in fact in recess. But it’s not: The House and Senate are conducting pro forma sessions expressly to avoid going into recess.

Democrats will point out that Republicans in the House forced this situation to prevent recess appointments, which are constitutional, and which President George W. Bush and others made at times to skirt Senate opposition to their choices. Republicans will point out that Democrats in the Senate — including then-Sen. Obama — employed the exact same tool for the exact same reason toward the end of the Bush years, and that Bush did not “go nuclear” by ignoring the pro forma sessions. A similar point could be made about the use of the filibuster.

I would say that, sooner or later, one party or the other was going to have to decide to unilaterally disarm when it comes to these disputes. Except that neither party has exhibited the kind of good faith that would indicate it would respond in kind to such a disarmament.

Until and unless that changes, I can only imagine these situations will continue to escalate until one side gets the judicial branch involved to decide on constitutional grounds. And I fear that, even then, the result will not be a resolution respected by all parties, but rather to make that branch even more politicized.

– By Kyle Wingfield

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