Obama Set to Make Yet More Recess Appointments

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Apparently President Obama has decided to make three recess appointments to the NLRB in addition to his recess appointment of Richard Cordray to the CFPB. Matt O’Brien tweets:

I’ll ask again: if Obama will recess appoint CFPB and NLRB positions, why not also Federal Reserve seats?….CFPB and NLRB draw contrasts with the GOP in a way Obama likes, but the Fed could actually, you know, improve the economy.

Two things. First, I’ll bet that Obama doesn’t think additional Fed appointments would actually change Fed policy that much. So he doesn’t think there’s a lot of urgency there.

Second, and more important, if these are the only recess appointmentments he fills, then he’s making a very clear, very defensible constitutional point. He’s not merely complaining that a Senate minority is blocking his nominees. He’s arguing that it’s wrong for a Senate minority to shut down entire agencies — agencies that have been duly created by statute — by abusing its confirmation power. Because that’s the difference between the CFPB/NLRB and the Fed. The former literally can’t function without their appointees, and Republicans have been explicit that preventing them from functioning is their goal. The latter continues to function just fine.

This is a point worth making, even if it’s arcane enough that it’s unlikely to get much public attention. Because to the extent that it does get public attention, it’s nothing but bad news for Republicans. They’ll be forced to defend a strategy of using their filibuster power not to stop legislation they don’t like, but to unilaterally nullify legislation they don’t like even after they’ve lost the vote and it’s been passed and signed into law. That’s going to be a hard case to make.

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