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Despite significant deliberation, Senate Republicans are wrestling with how to devise a united response to President Barack Obama’s controversial recess appointments earlier this month.
Some Senators appear to be concerned that further blockades of nominees could give the president more ammunition for his narrative about GOP obstruction creating a do-nothing Congress.
“What can we really do [in the Senate]? We are probably not going to reverse these things,” Sen. Ron Johnson said.
The Wisconsin Republican added: “I don’t want to walk into any type of trap and playing into the president’s hand about a ‘do-nothing Congress.’ I don’t think that serves our interest well.” Johnson said that it was important for Republicans to make the case on the recess appointments to the public but without opening themselves up to attacks.
Still, there are advocates for fighting back against what they believe was an unconstitutional use of the recess appointment power. How Senate Republicans do that is still being decided.
While most Members were away from Washington for the winter holidays, Obama in early January appointed Richard Cordray to be head of the Consumer Financial Protection Bureau and filled three slots on the National Labor Relations Board, including one Republican NLRB position.
Republicans question the legitimacy of the appointments. They contend Congress was not technically in recess when the appointments were made because both chambers held short pro forma sessions every three days during the holiday break. The White House argues that the pro forma sessions were a “gimmick” and didn’t count as bona fide sessions.
“There are a broad range of opinions in our party,” Sen. Chuck Grassley (R-Iowa), ranking member of the Senate Judiciary Committee, said today.
With no unified strategy, some Senators have threatened to hold up nominations, but it remains to be seen whether they could command the 41 votes needed to mount a filibuster without the support of GOP leaders.
At a Judiciary Committee hearing today, Grassley said that approval of nominations typically slows in a presidential election year, a situation known as the Thurmond Rule, for the late Sen. Strom Thurmond (R-S.C.).
“The historical practice has been for work to slow down a great deal during such years,” Grassley said.
Grassley cited comments made in 2007 by Judiciary Chairman Patrick Leahy (D-Vt.) that the rule typically kicks in around April of the election year.
“In March 2008, well before the political conventions that year, then-Chairman Leahy stated, ‘It is a rule we still follow, and it will take effect very soon here,’” Grassley said. “I just wanted to remind my colleagues of the history regarding the historical practice and precedents of this committee in presidential election years.”
Sen. Mike Lee, another member of the Judiciary Committee, also threatened to slow down the nomination process and possibly other legislation until the appointments are withdrawn.
“Given this president’s blatant and egregious disregard both for proper constitutional procedures and the Senate’s unquestioned role in such appointments, I find myself duty-bound to resist the consideration and approval of additional nominations until the president takes steps to remedy the situation,” the Utah Republican said at today’s hearing. “Regardless of the precise course I choose to pursue, the president certainly will not continue to enjoy my nearly complete cooperation, unless and until he rescinds his unconstitutional recess appointments.”
Also today, Sen. Roger Wicker said he would boycott a Banking Committee hearing scheduled for next week where Cordray is scheduled to testify.
“I will not provide the administration with the appearance of legitimacy, and I will, therefore, not be in attendance at next Tuesday’s hearing,” the Mississippi Republican said on the Senate floor.
Other Republicans on the Banking Committee may follow Wicker and not show as well.
Other Republicans are considering legal, legislative and procedural options but would not give any specifics.
Sen. Lindsey Graham, also a member of the Judiciary Committee, acknowledged that Republicans have yet to get behind a single approach.
The South Carolina Senator said Republicans discussed the issue at the Senate GOP retreat Wednesday but that “there was no consensus.”
Graham said that he would sue to invalidate the appointments if he could but that he likely didn't have legal standing to take action in the courts. “That is how strongly I feel about this. This is clearly a game changer in terms of how the recess appointment has been used over the last couple of hundred years,” Graham said.
GOP Senators could try to slow progress on White House or other Democratic initiatives, but no Members to date have announced that they plan to do so.
Senate Democrats are behind Obama on the issue. After a news conference Wednesday, Majority Leader Harry Reid (D-Nev.), who pioneered the pro forma session strategy to stave off recess appointments from President George W. Bush, declined to say whether he personally believed that the Senate was in recess. Instead, he reiterated his support for the recess appointments and said the president had no other choice.
“It’s a constitutional right the president has,” Reid said. “They were basically giving the president no nominations. For example, they don’t like a law we passed, so they are not going have any people to fill the [top] position to make that law effective.”
He said that Cordray’s situation was unprecedented in that he was held up not over his qualifications, but over the GOP’s dislike of the financial reform law that established the CFPB.
“I support the president,” Reid said. “The president has made his play, and I think he did the right thing.”
Graham said that the system of checks and balances is in jeopardy if the White House gets to decide what counts as a session of Congress.
“Can he do it while we are at lunch?” Graham asked. “This is outcome-based government, and if I can sue individually, I will.
“This is a real shifting of the balance of power towards the executive branch in a way that I don’t think our founding fathers would appreciate,” Graham added.