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Dems Preempt Bush Recess Moves
It's gotten to be a common occurrence. When Congress has a scheduled recess, the Democratic leadership keeps the Senate (and sometimes the House) in pro forma session in order to prevent any administration recess tomfoolery.
The main concern, of course, has been that the president would push through controversial recess appointments. But this time around, the Politico reports, a main concern is that the administration would try a coup de théâtre -- i.e. use the president's power to force the House into special session as a way of putting further pressure on the House Dem leadership to pass the Senate's surveillance bill and win that coveted retroactive immunity for the telecoms:
Pelosi, fearing that Bush would try to capitalize on the House’s absence to call Congress back into a special session, scheduled two pro forma sessions on Tuesday and Thursday. The Senate will do the same at the same time. Since neither chamber goes out for more than three days, Bush cannot take the dramatic step of calling the Congress back for the first special session since Harry Truman did it in 1948.
Not to worry, though, as you can be sure that the administration will find somehow, some way to issue periodical warnings about our imperiled nation this week. They seem to have taken a break on President's Day, but we'll let you know when they're back at it.
Meanwhile, the leadership of the House and Senate judiciary and intelligence committees are negotiating a compromise bill. No word yet on how things are going.
Josh
Zachary
As much as I respect the tactical necessity of the manuever, it grieves me. Bad enough that we're saddled with a presidential administration that looks at laws and rules as so many hurdles to be cleared. Its narrow legalism has led it to eschew established custom when it enjoys no explicit legal foundation, and to push forward policies that may fit within the tightest readings of the law imaginable, but which clearly pervert its intent. The result - as in the firing of US Attorneys - has been disasterous, not only in a narrow and immediate sense, but to the very fabric of governance.
I sincerely wish that Speaker Pelosi and her colleagues would refrain from resorting to similar tactics. Pro Forma sessions may serve, in a technical sense, to forestall the recess provisions of the constitution, but I don't think there's any real doubt that they contradict the clear intent of the founders. That these maneuvers serve a noble end does not excuse the means. If Congress disagrees with the steps that the president has taken while it has been recessed, it is welcome to challenge those steps explicitly, or to stay in actual (as opposed to pro forma) session. This is cowardly, and ultimately, destructive.
February 19, 2008 11:06 AM | Reply | Permalink
I disagree, FlyOnTheWall. With Bush's ratings where they are now, Congress is finally developing a backbone. The contempt charges last week, the refusal to bow down on telecom immunity, and these tactics show an increasing resistance to being bullied by the administration.
There comes a point when you have to do battle with the tools you have. Bush has been using everything but the kitchen sink to get what he wants for seven years. Congress is finally drawing a line in the sand and saying enough is enough.
Let's just hope that under the next administration, Congress and the President can work out new rules to ensure an increased level of cooperation and respect for each other's roles. This is something that has not been brought up in any debates yet, but I would love to see each candidate's responses to questions regarding executive power.
February 19, 2008 11:16 AM | Reply | Permalink
It's striking to me that noseeum (you have to do battle with the tools you have) and spencer (you go to war with the parliamentary procedures you have) adopt almost precisely the same language in defending this maneuver. Their contention is that since the cause is righteous, any available means are justified. More than that, it's at least an implicit contention that since the Bush administration broke the rules first, Congress is justified in following suit. It's an argument that the Bush administration has advanced for the past six years - to wit, that the only response to opponents who eschew convention and the rule of law, is to ourselves abandon the rule of law and fight them on their own terms.
I think it's been a disasterous means of waging the war on terror, and can't imagine why Democrats would abandon a similarly flawed strategy to guide their battle over the balance of powers. To me, the only effective response to opponents who challenge the very existence of the rules is to insist, more forcefully than ever, on their primacy. If Bush wishes to exercise his Constitutional perogatives to make recess appointments, but does so not because of the urgency of the vacancy but as a politically expedient means of making an appointment in defiance of the will of the Congress, then let's call him to account for it. Congress has a potent weapon - the power of the purse. Suspend funding for some crucial initiative until the appointee resigns. That's how the framers envisioned Congress defending its perogatives.
I'll stand by my assertion that when Congress sinks to the president's level, it has already lost the battle. That's part of the reason why its ratings are mired at the same level as the president's. On those rare occasions when Congressional leaders stand and fight, the public correctly perceives that they are maneuvering for narrow partisan advantage, and not taking a stand for the principle of balanced powers. I don't just want Congress to find some means of restoring a Constitutional FISA bill; I want them to do it in a manner that constitutes a rebuke to the president for circumventing the Constitution. How Congress wins this fight is as important as the outcome, and it's off to a dismal start.
February 19, 2008 11:33 AM | Reply | Permalink
Fine, smart guy. How exactly do you "fight" recess appointments? You can't be serious about defunding being the best and/or only option, especially since the appointee would have any remaining budget to work with.
February 19, 2008 11:51 AM | Reply | Permalink
Actually, I'm perfectly serious about the Congress using its appropriations authority as a means of redressing the imbalance of powers that has grown ever worse over the past century (with a brief ebb at the nadir of the Nixon administration). To be effective, such a strategy needs to be consistent. It needs to be sold to the public as more than a means of implementing (or blocking) specific proposals; it needs to be portrayed as a fight over Constitutional powers. And Congress needs to steel its resolve.
Short of that, if Congress finds the president's actions while it is in recess distasteful (as well it should), then perhaps it should consider remaining in session. Yes, that's inconvenient. But it's the equivalent of a filibuster. Done properly, it could drive media coverage and the broader narrative. (Congress in session for record 130th straight day! Leaders vow to remain in continuous session until Bush administration agrees to respect its Constitutional perogatives!)
But even if those strategies seem ineffective to you, I don't see how that justifies the present strategy. You seem to be suggesting that the status quo is so dangerous that any change would be an improvement; I would argue that changes which further erode our respect for Constitutional norms and processes make a bad situation worse. I sympathize with your frustration. But imagine, for a moment, that the partisan roles were reversed - that a Republican Congress was using sham sessions to thwart a Democratic president. I know I'd be outraged. And that, for me, is the true test of any manuever - is it something I'd respect, however grudgingly, if my opponents deployed it against me?
February 19, 2008 12:09 PM | Reply | Permalink
If you think that Thomas Jefferson and James Madison didn't use every parliamentary maneuver they knew to further their agendas when they were legislators, you are fooling yourself.
Look, this is how conventions are established in the first place. Both sides maneuver until it is clear they are at an impasse, and then they come to some agreement that allows each side to move forward. Those who do not have the stomach for the mud-wrestling that is often involved in that maneuvering don't belong in politics.
Similarly, you have to make clear that there will be consequences for breaking those conventions once established. In 1909, the Liberal majority in the British House of Commons passed a budget that included surtaxes on higher incomes, an increase in death duties, and capital gains taxes on land sales to finance social reforms for the benefit of the poor, and rearmament to counter a German military buildup.
Up until that time, there was a firm tradition that the House of Lords did not interfere with the Commons's money bills. But this time the large Conservative majority in the upper house broke with convention and voted down the budget. This was highly unpopular with the electorate. Ultimately, the Lords were forced to back down when the Liberal prime minister convinced the King to threaten to appoint 500 Liberal Lords to swamp the Conservative majority there. In 1911 the Lords were forced to consent to legislation reducing their veto power over most bills to merely being able to delay them for up to two years (subsequently reduced to one).
You might consider the threat of stacking the deck like that to be dirty pool, but sometimes it takes a little strong-arming to remind everyone where the real power of government lies, and in a democratic society, ultimately that is with The People.
February 19, 2008 12:48 PM | Reply | Permalink
I wasn't going to respond, but I was so tickled by your elaborate analogy, I couldn't resist.
The confrontation in Britain in 1909 was fueled by a simple fact - the Lords held their office by dint of their birth, and so believed themselves immune from the popular will. That's why the Liberals threatened to pack the house; because there was no other remedy available. Fortunately, we live in a democracy, in which no one automatically inherits office as a consequence of their parentage. When elective office holders displease us, the voters, the proper remedy is to vote them out of office.
Perhaps a more apt analogy would be FDR's court-packing scheme, which even his most fervrent backers generally condemned as a destructive subversion of constitutional norms. But even that analogy falls short, because it was a contest between two elected branches and an appointed one. In this case, two elected branches of government, the executive and legislative, are squaring off. I don't think we need to resort to extraordinary remedies in order to resolve the conflict. If the people are displeased with the executive, they have the chance to replace him. And, barring that, they can choose to elect legislators who will serve as a check on his power. But, crucially, those legislators have to fulfill their mandate.
February 19, 2008 3:01 PM | Reply | Permalink
I'm really surprised to hear you argue for the continued abdication of legislative power.
The framers of the constitution clearly intended recess appointments to be a power wielded in an emergency situation. Yet Bush uses them to get the most radical of neo-con thugs into significant positions of influence.
This president has abused every aspect of our society and our legal system. I'm all for the congress using the same arcane mechanisms that bush expoits freely to stop him cold.
WE ARE NOT AN ARISTICRACY!!!
February 19, 2008 12:26 PM | Reply | Permalink
FlyOnTheWall, while I suspect that you might be concern trolling, I'll assume that you are being sincere. Perhaps you're just fooled by Republican propaganda.
The founders put in the bit about recess appointments because in those days, Congress only sat for part of the year, and there needed to be some mechanism to handle emergencies, like the death of a senior official while Congress was out of session and could not be brought back into session for weeks or more.
It was not intended as a way for the president to be able to effectively eliminate the requirement that Congress advise and consent on appointments. The founders had just replaced a king, they didn't intend to name a new one. The intention was never to give the president a way to appoint officials that Congress would reject. It was strictly an emergency provision.
Pro forma sessions do not break the rules, and are not sinking to Bush's level. Given the behavior of this administration, they are pretty much the only countermeasure available.
It is Bush's misuse of the recess appointment provision, not the Congress' use of pro forma sessions, that violates the spirit of the constitution. The founders intended for judges and high officials to have wide support.
February 19, 2008 1:57 PM | Reply | Permalink
Pro Forma sessions may serve, in a technical sense, to forestall the recess provisions of the constitution, but I don't think there's any real doubt that they contradict the clear intent of the founders. That these maneuvers serve a noble end does not excuse the means.
Hey, you go to war with the parliamentary procedures you have, not the parliamentary procedures you wish you had.
February 19, 2008 11:18 AM | Reply | Permalink
Good points, noseeum, but what's the practical alternative? I've have been first to complain when Pelosi, Waxman, Reid, Conyers, et al persistently cave in to this corrupt administration. I agree that it is unfortunate that government must move forward so ... tactically, but the Democratic approach is a reasonable response to the behavior and methods of the opposition.
February 19, 2008 11:20 AM | Reply | Permalink
And you don't bring a knife to a gunfight.
Good for Pelosi -- I'm glad she's using the tools at her disposal.
February 19, 2008 11:23 AM | Reply | Permalink
This doesn't "preempt the Founders' intent". They assumed recesses would be extended, because getting to the capital was arduous. Today, the recesses are ludicrously short. Why is it OK for Congress to take the weekend off, but not a three-day weekend? Or a week? Is the business of the government really hindered?
The Founders were worried about things like the Long Parlaiment, not short breaks. It's the President who's been abusing their intent.
February 19, 2008 11:26 AM | Reply | Permalink
So basically, "flyonthewall" we shouldn't jail kidnappers because it is doing to them what they did to someone else?
This is a good argument against capital punishment though.
February 19, 2008 11:28 AM | Reply | Permalink
The basic manipulation point is Congressional recesses.
I would think both Congress and the Executive should agree that, in principle, all duties of Congress should be performed by Congress except for in certain urgent cases. I don't believe the founders meant for president's to hold all of their appointments until the day Congress recesses so as to avoid Congress' advice and consent responsibility. When the Constitution was written, it would have take over a month to get Congress back to Washington in an emergency, so they needed a way for the president to act during recesses. That's not that case anymore. It's an obvious loophole that should be closed.
The reason the loophole exists is to enable the president to get something done in a time of urgency.
One can imagine a mechanism whereby a President, if he wishes to accomplish something during a Congressional recess, is able to contact the Senate majority leader and the Speaker of the House and explain what he'd like to accomplish. Criteria could be agreed on ahead of time in the rules, e.g. in cases of national security, or for certain particular positions, recess appointments are prohibited, or, if a position has been open for 30 days and no nomination has been made for a position, the president gives up his right to make a recess appointment because the "urgency" criteria obviously has not been met.
Plenty of improvements can be made here. Problem is, this is the plumbing of government, and most politicians don't have the patience for it.
February 19, 2008 11:32 AM | Reply | Permalink
Remember how Chimpy put it?
"Fool me once, shame on...on you. If you fool me you can't get fooled again."
http://www.youtube.com/watch?v=8Ux3DKxxFoM
February 19, 2008 11:35 AM | Reply | Permalink
Agree with Noseum here. The house should use the tools it has, especially since the white house uses all the tools it has and more importantly, the tools it doesn't have but invents along the way.
Congress has been shackled and oft times rendered superfluous under the Bush administration.
And what of the judicial branch?
The most profound loss of governance, it seems to me, is that of the justice system.
Just today, the supreme court ruled against yet another case brought against the administration regarding warrantless surveillance.
The only reason given was that the plaintiff had no evidence.
Unfortunately, the government won't allow anyone, not even the court, to review the evidence.
In this kind of un-democratic environment, I'd rather see a branch of government follow the rules, even if technical, than not follow any rules at all.
February 19, 2008 11:37 AM | Reply | Permalink
Gary:
You write, "I'd rather see a branch of government follow the rules, even if technical, than not follow any rules at all."
Technically, Bush is following the rules. His recess appointments have been, in a narrow sense, perfectly Constitutional. His threat to recall Congress to session is, likewise, perfectly legal. That both initiatives discard long-standing precedent is, in a strictly legal sense, immaterial. The Bush logic forces us to place every rule in writing, and will likely foster a hyper-legalism, that will ultimately prove incredibly constraining.
In a similar sense, Congress is also following the rules. It has this option, and it's likely to withstand legal challenge. But pro forma sessions are a sham; a deliberate subversion of the framers' intent, used to offset similar subversions. That's a race to the bottom, and that's something we all stand to lose.
February 19, 2008 12:13 PM | Reply | Permalink
Some (wingnuts, republicans, others) obviously think Bush should the tools he has to get what he wants, but the Congress should NOT use the tools they have to get what they want.
February 19, 2008 11:44 AM | Reply | Permalink
So basically, John, if kidnappers break the law, we should hold them to account by means of enforcing the law. The proper response to criminality is not extra-judicial (stand a suspected kidnapper against a wall and shoot him) but legal (obtain a warrant for his arrest, try him before a jury of his peers, and sentence him according to the legislation on the books). Law-breaking only begets further law-breaking.
February 19, 2008 12:00 PM | Reply | Permalink
unfortunately, this prez is a snake. Congress has kept playing by the rules...we see where THAT got them. Have you ever asked a rattler to hold on while you go get your gun?
February 19, 2008 12:33 PM | Reply | Permalink
I think the tone against FotW is getting a little strident here. There's nothing wrong with speculating as to how noble and principled and purer-than-Caesar's-wife we might be if there were nothing riding on it.
But I think there's one theoretical problem with your argument, FotW, to go along with the obvious practical problems. You lament the "narrow legalism" of tricksy Constitutional two-steps like this because they bring Congress down to this president's narrowly-legalistic but despicable actions.
The problem there is that they're only "narrow" in the sense of "thin." From a thousand yards, what I paint might be mistaken for the Mona Lisa, and from a similar distance any of the following might be mistaken for a legal argument:
* that anything potentially embarrassing to the executive branch is covered by executive privilege;
* that the executive branch can exert that privilege on behalf of third parties;
* that a bill left unsigned while Congress is in session is vetoed;
* that the "war on terror" is a legal construct equivalent to a Congressional declaration of war,
* and a million other formulations to the effect that "if the president does it, then it's legal."
The point is, Bush has no intention or desire to create a permanent ultra-powerful executive branch, or to leave his successor any of the tools he's stolen. All he's ever needed to do is throw up the thinnest legal smokescreen, no matter how laughable, and before anyone can properly dismantle it via suit or legislation, whatever deed he did is done. Once the concrete is poured at Gitmo, once the wire transfer to KBR has gone through, once the fox is installed in the henhouse, once the water table has been polluted, once the bonds have been sold, once the bomb has left the bay, it's done. The absolute worst case scenario from his perspective is that a few years down the road he'll be told he wasn't strictly speaking allowed to have done it. Big deal.
It's not nice to hit the bully in the nose, and you don't have to feel proud afterwards. But there comes a point when you have to do it, especially when it's not just your interests at stake.
February 19, 2008 12:39 PM | Reply | Permalink
It seems that the argument being made by FOTW is that subtle action taken by Congress is immoral because the President's immoral actions were often taken via subtle action.
In other words: The President's ends were evil, and so the means which he used must be condemned - thus the Congress should be careful not to use the same means lest their ends be deemed immoral. The logic of this argument does not hold up to scrutiny:
1) Holding Pro-Forma sessions is perfectly legal and within the bounds of parliamentary procedure.
2) The use of Pro-Forma sessions is intended to maintain a check on the executive which would otherwise use a congressional recess for it's own immoral ends.
In this matter, Congress seems to be upholding its constitutional obligations and does not deserve to be chastized. They should be applauded for finally accepting their responsibility.
February 19, 2008 1:54 PM | Reply | Permalink
Close, but not quite.
My argument is that this President's efforts to expand executive power are unfortunate, and act to strip away the accretion of tradition and precedent that safeguards the Constitution. I object not simply because he's using these methods to achieve ends of which I disapprove (although, to be sure, he is), but because the methods themselves are corrosive, and the damage that they do much more difficult to reverse. A subsequent president can overturn any executive order; but once a precedent is breached, it's gone forever.
Josh has blogged before about how important good faith is to our Constitutional system. It will likely be impossible to prove illegality in the firing of the US Attorneys, and as the Bush administration has repeatedly pointed out, all US Attorneys serve at the pleasure of the president. But I was certainly disturbed when, contrary to all precedent, and to the clear intent of the legislation that establishes their role in our legal system, the president and his advisers acted to politicize the appointments of US Attorneys, dismissing them mid-term for purely political reasons. He had the legal right to do it (or at least, can plausibly claim that right) but that doesn't justify the action. And now that Bush has dismissed US Attorneys for this reason, any future president can point to his precedent and do the same. And that's a damned shame.
Pro forma sessions are not detailed in the Constitution. They're a legal fiction, devised to serve the purpose you detail - to prevent the Congress from being declared in recess. Your language is curiously passive: "is intended to maintain a check." Well, perhaps, but intended by whom? Certainly not by the framers. Certainly not by generations of legislators, who functioned just fine without them. They were introduced as a countermeasure to an executive run amok. And that's my objection to them. When the executive misbehaves, the proper response is not to devise a legal fiction to curtail his powers, but to confront the misbehavior forcefully and directly.
Actually, in this case, what Speaker Pelosi is doing is even more apalling. She's adjourned her house into pro forma session in order to forestall being recalled into an actual session. She's not worried about recess appointments - she's concerned that if they go, the president will call them back to Washington. So what? Let the president recall the Congress. If he's grandstanding on a bogus national security issue, call the man on it! Fill the agenda for the special session with a series of initiatives that will actually safeguard Americans, and contrast that with the Bush administration bills that will violate civil liberties. This alternative is, in a word, spineless. Pelosi's saying that she'll convene fictive sessions every few days because, heaven forfend, the president might otherwise force Congress to come back to work and legislate. You'll forgive me if I don't see how that's going to prove a winning argument.
February 19, 2008 2:23 PM | Reply | Permalink
Article II
Section 2 [Presidential Powers]
“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.” (Emphasis mine)
Someone please explain to me how this can be interpreted any other way, than the following:
If the vacancies DO NOT HAPPEN WHILE the Senate was in recess, then the President does not have the legal right to ‘fill up ANY vacancies’ at all.
If on the other hand, ANY vacancies that happen DURING recess, he has every legal right.
February 19, 2008 3:16 PM | Reply | Permalink
ImagineThat, the statement is actually vague, and your emphasis almost shows that.
You could stress different parts of the sentence to create two different meanings by splitting the sentence in two different ways:
1. The president shall have the power to fill up all vacancies that may happen during the recess...
2. The president shall have the power to fill up all vacancies that may happen during the recess of the Sentate
So, it's either "during the recess, the president has the power to fill vacancies" or "if vacancies occur during the recess, the president has the power to fill them."
As far as I know, the first interpretation has always held.
February 19, 2008 3:53 PM | Reply | Permalink
The entirety of parliamentary procedures used in the houses of congress is not specifically enumerated in the constitution. One cannot assume that because pro-forma sessions are not specifically mentioned that they are therefore banned.
If there was a question of the validity of this procedure, would the minority not pursue that matter with the House Parliamentarian?
Also, you are assuming that they are holding pro-forma sessions to avoid the embarrassment of being called into session by the President. The President has been champing at the bit on several appointments lately. Have you considered this?
February 19, 2008 4:12 PM | Reply | Permalink
FlyontheWalll said at 3:01 PM ********
Fortunately, we live in a democracy, in which no one automatically inherits office as a consequence of their parentage. ********
Truth is, we live in a so called democracy, where the moneyed and well connected actually DO "inherent" presidencies, corporations, banks, law firms, etc. and then fill the unelected ranks of those offices with their cronies.
Bush regime is just the latest in the American version of the British game.
February 19, 2008 4:16 PM | Reply | Permalink
Dear flyonthewall.....I pronounce you Troll!
While discussing politics with those I might not agree with can be a wonderful experience, discussing it with a troll has no value what so ever.
Your points are non-existent. Your concerns for the democratic party are a facade. Therefore, I can only conclude you are a troll.
Good day troll. I'll waste none of my good time with the likes of you.
February 19, 2008 4:33 PM | Reply | Permalink
Posted by noseeum:
ImagineThat, the statement is actually vague, and your emphasis almost shows that.
You could stress different parts of the sentence to create two different meanings by splitting the sentence in two different ways:
1. The president shall have the power to fill up all vacancies that may happen during the recess...
2. The president shall have the power to fill up all vacancies that may happen during the recess of the Sentate
So, it's either "during the recess, the president has the power to fill vacancies" or "if vacancies occur during the recess, the president has the power to fill them."
As far as I know, the first interpretation has always held.
noseeum: My error, I should have emphasized ‘that may happen during the recess,’ instead of just ‘during the recess’ of section 2.
I think it’s a given that he has the power to ‘fill up any and all vacancies’ while congress is in recess, but the way I read it.... means only if the ‘vacancies occurred’ while congress was in recess.
It’s very apparent that I’m incorrect in this interpretation; otherwise we’ve elected a lot of ignorant people to congress over the years.
February 19, 2008 5:26 PM | Reply | Permalink
Once every four years! There's a lot of mischief that can be done in the meantime.
Which is exactly what they are trying to do! But for some reason you object to their taking a surgical approach to that and doing something that only affects the president himself. You'd rather see them use the blunt instrument of withholding funds and hurting a lot of innocent people in the process. Or keeping the Congress in full session, making it hard for the members who live thousands of miles from DC to spend time with their constituents, not to mention their extended families. I don't think either of those approaches is preferable to the simple tactic of pro forma sessions, neither tactically preferable nor morally preferable.
February 19, 2008 7:04 PM | Reply | Permalink