January 4 2012
A Pro Forma Session Isn’t A Recess, Until It Is
Today, Obama recess-appointed Richard Cordray to head the Consumer Financial Protection Bureau, an institution created by the Dodd-Frank Wall Street Reform Act to oversee and regulate the ENTIRE financial services industry: bank accounts, loans, mortgages, securities, credit card transactions—everything. Republicans have blocked Cordray’s nomination because of concerns that the CFPB has way too much authority and yet no real oversight by Congress or the President.
The Constitution says (Article II, Section II):
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The problem? The Senate is not officially in recess. Instead, they are in what is called a pro forma session, where there is generally no business conducted. The Obama administration defends the President’s actions by saying:
“The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.”
Pro forma sessions were invented by Senate Democrats to prevent President George W. Bush from filling vacancies with recess appointments. Senator Barack Obama certainly had no doubt back then that those pro forma “gimmick” sessions kept the Senate out of recess and sufficiently tied Pres. Bush’s hands. But now those rules no longer suit his agenda, so he wants us to believe that pro forma sessions are really just recesses, which in turn invokes the recess appointments clause.
Let’s not fool ourselves—this stunt is nothing more than an attempt by Obama to score some political points against Republicans to gin up support among his base. I think Drew M., blogging at Ace of Spades, has a spot-on analysis of what the republicans in Congress should do in response: ignore it.
Sometimes the best strategy is to skip a fight you want to have and should have simply because simply engaging in it is a win for your opponent.
Think of it as ignoring a comment troll. It's unsatisfying but effective.
Any attempts to stop this action using means that are beyond Congressional Republicans’ control (i.e. lawsuits, impeachment proceedings, etc) will simply play into the hands of Obama, who is dying to run against a Republican congress in 2012. He wants to say that he’s fighting for Average Joes while the Republicans cozy up with Wall Street and the Banks. Instead, Republicans should save their political capital for a bigger fight and take solace in the fact that Barack Obama has effectively prevented any future Senate Democrats from using the pro forma sessions against future Republican presidents.