BrianGarst.com

Recess appointments are certainly nothing new, even if Obama’s much talked about not-really-in-a-recess style recess appointment of Cordray to head up the Consumer Financial Protection Bureau, the unaccountable regulatory agency created by Dodd-Frank, along with three new members to the NLRB, has gone above and beyond the more recently accepted practices. What’s interesting to me is how ridiculous is much of the rhetorical justification for the move. The argument I frequently see goes something like this: Republicans blocked Obama’s appointments, therefore he just had to act.

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

Although there are legitimate concerns with agencies being left unmanned by Senate inaction, I’m more inclined to view the idea of the recess appointment as the bigger problem here. It made much more sense when originally conceived, as the legislature was a part time body which might be out of session for months at a time. Such is simply not the case anymore. Today we have a full time legislature that rarely recesses for more than a few weeks at a time. There are few if an vacancies that are so critical they would have to be filled before the Senate soon returned to session. And if the Senate refused to do so for poor reasons, that’s a political issue best sorted out by voters at election time.

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