Wednesday, August 31, 2011

Recess Appointment Update from Boehner: We're Not in Session

Yeah, there's a huge flap going on this afternoon about when Barack Obama's speech to Congress is going to be next's a perfect slow-news-cycle story that everyone will forget about soon. But Plain Blog (courtesy of reader JC) has the best angle on it: the Speaker practically admitted that Obama can make recess appointments right now!

Boehner (my emphasis):
As you know, the House of Representatives and the Senate are each required to adopt a Concurrent Resolution to allow for a Joint Session of Congress to receive the President. And as the Majority Leader announced more than a month ago, the House will not be in session until Wednesday, September 7, with votes at 6:30 that evening.
So: Boehner is saying that Congress, pro forma sessions in order to supposedly block recess appointments notwithstanding, is not "in session" enough to, say, pass a non-controversial resolution! Doesn't that tell us that the Senate is in fact in recess? Doesn't it mean that the current month-long period does in fact fulfill the Constitutional requirement that "The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate"?

I mean, if you can't believe John Boehner about when Congress is or is not in session, who can you trust?


  1. brilliant! Those chicago pols are clever! Where is the wave of recess appointments?

  2. I think this counts as a CotD for Boehner....

  3. Mr. Bernstein,

    I think you can believe the 12 vulnerable Senate Democrats, who are desperate for Obama not to do anything stupid right now. They can't afford a Van Jones moment. Neither can Obama, for that matter.

  4. Anon,

    You've said that several times, but mostly I don't think they would care either way; no one is going to vote based on recess appointments, controversial or no. But to the extent they care about policy, they would presumably be for a properly functioning exec branch...and if a couple of Fed appointments can tilt the balance and produce better economic growth, well, that would be a big deal.

    Also: 12? Charley Cook has 9 vulnerable Dem incumbents in the Senate (and 4 vulnerable Republicans).

  5. It's at the margins, Mr. Bernstein, but don't say "no one" is going to vote that way, because somebody will, and I guarantee somebody is gonna be sticking a video camera in Claire McCaskill's face asking her why the US Senate is allowing Obama to appoint people with the US Senate unable to find work time to investigate and confirm them, while the rest of us are enduring 10% unemployment.

    Plus the nominee just might be treasonous like the bearded one! And aren't our Senators supposed to protect us from treason? Paranoid incumbents are subject to ward off any of that kind of trouble before it takes root, and counsel Obama against it. And don't laugh, because as those incumbents know, there's a Karl Rove in the weeds somewhere turning that one over in his mind to see if it just might work somehow!


    Those Senate vulnerables are in for the fight of their lives, and they know it, as do you. Anything may make the difference, and a possible Van Jones moment most of all.

    You're implying that a far-end-of-the-table Fed nominee would make a difference in policy, and I just flat out disagree with you. This decision has no, zero, none, nein, nyet policy implications for Obama. It is an absolute non-factor policy wise, with a potential as political landmine, which is why the vulnerables don't want it. Neither should Obama.

    I wouldn't presume to argue with Charlie about his counts, although he was quite slow to accept that the US House was gonna flip last cycle. I predicted it in Spring 2009, when I watched the whipped Cap and Tax vote, which was pure suicide for the Left (check Manchin's campaign ad). ObamaCare caused the historic blowout, but the House was destined to flip the moment Pelosi strongarmed those vulnerable congressmen on that vote (following the Bailouts, and Porkulus).

    So I'm likely ahead of Charlie's curve here as well, as I'm factoring in Obama's extreme weakness. I smell a 1980 moment, and a massive wave in the Senate. But you're right, the net swap might not be 12, as the R's may drop a handful as well. But it'll likely be another wave (and there'll be another in 2014).

  6. Anon,

    1. I'm real comfortable with "no one." It's highly unlikely that swing voters would even know about a process thing like that 15 months later, and even less likely that they would vote on the basis of it.

    2. The idea that exec branch appointments are irrelevant to policy is quite wrong. Exec branch appointments in fact have a large effect on policy.

    3. This one is a guess, but I'd be somewhat surprised if there were three incumbent Senators in the history of the Cook report (since 1984) who have been rated as safe at this point and then ultimately lost. It's not going to happen. It *is* possible that the cycle will be +12 for the GOP, but most of it would come from open seats.

  7. That's the point though, Mr. Bernstein. Those vulnerables' opponents will MAKE it known, if it works to their advantage. If not, it lies dormant. It may only work at the margins, but if Claire is busy flying about on her airplane, for which she's mishandled taxes and/or expense reports, yet can't find time to do Senate business... who knows how that plays out?

    She's in a dogfight now. She's going to win or lose at the margins, which you (mistakenly, imo) take for granted. Her campaign hustlers don't, I suspect.

    Politics these days is about avoiding risk, and achieving reelection. Contemporary politicians minimize risk as an absolute overriding consideration, most times. Claire's no different. She can't have Obama planting potential IED's in her road. I don't think Reid would allow it either, and that's who's blocking any of what you want here, I suspect.

    You can't on the one hand say this obscure Fed nominee doesn't matter to voters, but on the other hand claim it makes a major difference on policy. That's incongruent. And vulnerable incumbents who just listened to cowboy Perry flinging "treason" barbs about are aware that obscure Fed nominees just MIGHT blow up come next Summer. They're worried about gettin' lassoed.

    But the biggest thing is, it doesn't help Obama, in any way. It only opens up potential hurt. This is a feel good thing for the Left, solely. No policy or political considerations whatsoever, imo.

    I'll take your word for it on Charlie's record since 1984. He's cautious, but he does lean a smidge Left as we saw last cycle. Not Silverish by any means, but you know what I mean. But I'm reaching back to 1980 with this prediction. I say 12 D seats will be at risk. Now, throw a few witches and angles into the mix, and I drop the number (but then again, it might also rise, if it goes further south for the Left). I'm speaking strictly about electoral topography here, 14 months out.

  8. Try to ask yourself: "How many different ways could the actions of the Federal Reserve come under extreme attack between now and November 2012, I mean an honest to goodness major public policy brouhaha, and how would a single unilateral Fed appointment play in the hostile and rancorous environment in which those attacks would have originated?"

    And that could very well happen. The Paulbots want to fricasee the Fed. Perry's firing warning shots. The Euro banks are about to go under, and the Fed and IMF are gonna likely get involved. Bernanke is itching for QE3.

    You don't plant IED's in that battle space.

    Claire don't want it. Bernanke don't want it. Treasury don't want it. Wall Street SURELY don't want it. And I don't think Obama wants it. No gain... potential pain.

  9. Anon,

    Looking around...I find a Bloomberg poll that has 41% who don't have an opinion of Ben Bernanke. Now, we're talking here about someone who would be far, far, far, less visible than Bernanke, and then we're talking about not what that person did but how he or she wound up appointed, and then further we're talking about an attack on a Senator for what exactly? For standing by when the president made an appointment that she never voted on?

    If a consultant recommended an attack on that basis in a Senate campaign, she'd be fired, as soon as everyone in the room stopped laughing.

    Absolutely no one is going to care about this stuff except (possibly) for high-information hard partisans, and their votes aren't up for grabs.

  10. Correct. Nobody but you and I and a few others know about Ben Bernanke. And even I didn't know much about him, until the last couple years. Now I do... and in the above hypothetical hostile environment... many, many more will.

    It can kick back on those Senate candidates, inevitably, even if it's just a general attack on Obama washing onto them. Either directly or indirectly, it has potential to hurt them, if only at the margins. And those vulnerables will fight at the margins. That's why I predict the wave... it's a presidential year. Claire would have a better shot in an offyear, at least better than 2012 is shaping up as.

    And if Claire has made even one slip of the tongue, or makes one in the future... we have our gotcha moment. Wall to wall campaign commercial coverage. The Senate is hunkered down, but they can't do so forever. I agree with you that you can't reach into a Senate campaign for obscure appointments... but as the battlefield shapes... those appointments may reach themselves into the campaign on their own.

    I think the aggressive approach is unwise, and I'd advocate a cautious rearguard action. The time for aggressive action is long past, unless the Left has decided to go kamikaze, and I don't see the incumbents supporting that. They want to hang around, even if Obama is gone. I remember Tip O'Neill's quote, as Carter was making the customary president elect's visit to Congress: "Remember, I was here when you got here... and I'll be here when you leave."

  11. So the big breaking news headline on HuffPo says that Obama caved on the jobs speech date and agreed to next Thursday (Packers-Saints) instead of Wednesday (Rep. debate). This switcheroo is an outstanding illustration of the difference between the President as Effective Program Manager (e.g. Buck Stops Here) and President as Accumulator of Legislation.

    The "President-as-Chief-Legislator" crowd would no doubt say its a non-issue, no one remembers a job speech by the time of the election, so getting swamped by NFL opening night is irrelevant. Jonathan in particular blanches at the characterization of President-as-CEO, but at some point the head of the government, whatever the CEO-ishness of his role, has to stop getting the boot in his ass.

    Speaking of shoes, Khruschev famously took his off and slammed it on the lectern at the UN, saying he would crush the US. I suppose the Obama-ites, feeling as they do that a Presidency is judged by the total legislation passed, would have no problem if Kennedy had responded to Khruschev with an offer to re-sole his shoe, in case something happened to it in the course of said slamming.

    What's the difference, right?

  12. Okay, so the above was a bit harsh. But here's the thing: the defenses of Obama in the blogosphere are, as I read them, three: 1) it doesn't matter, 2) Boehner is a trickster and tricked Obama, or 3) (per Carney) there's plenty of space to do the speech and kick off the NFL season.

    The third defense is awe-inspiringly bad. Where does most hiring come from in the US? Small business. Why don't small businesses hire people? Insufficient confidence in the economy. What's the most important thing a President needs to achieve in a job creation initiative? Inspire confidence among those who hire, small businessmen.

    So Joe Small Businessman will be sitting in his Barcalounger next Thursday at 8 EST, halfway through his second Heineken, checking his fantasy league on a hunch that no one drafted Jeremy Shockey, and against that backdrop the President is gonna squeeze in a televised blurb that is going to convince Joe Small Businessman to hire again?

    Its so awful that it almost makes you laugh a little, but its not a mirthful laugh, its a really uncomfortable one.

  13. It's amusing we're talking about recess appointments on the same day Obama let's himself get pushed around by Boehner on the date of a Presidential address to Congress.

    It's plain that Obama doesn't care about staffing the executive branch, Federal courts, or the Federal Reserve or else he would have nominated people to fill all of those positions and made a push to get them confirmed a long time ago.

    He's not about to do something bold and partisan like make recess appointments when there is dispute over whether Congress is even in recess. Doing that would hurt Republicans' feelings and make it less likely they would agree to raise taxes in the Super Congress or pass a new jobs bill. (<-- sarcasm)

  14. Somehow, I don't think Legislator-in-Chief LBJ would get caught in this mess. Just a hunch.

  15. What Obama is able to do doesn't matter if he doesn't have the desire to act on it. I'd say he simply does not want to make recess appointments.

  16. desire?

    From what I hear, it was all the fault of axlerod. Too much review -- even of lower level stuff that the liaison officers should take care of.

  17. It's about time that Obama actually do something forceful, and stop pussy-footing around on every issue. It's time for him to challenge the Republicans on something. Start a fight, and not back down.

    His weakness on this matter is not extraordinary for his Presidency.


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