More New York Times fascism

A Court Upholds Republican Chicanery
Published: January 25, 2013 73 Comments

For most of President Obama’s first term, Republicans used legislative
trickery to try to prevent the functioning of two federal agencies
they hate, the National Labor Relations Board and the Consumer
Financial Protection Bureau. First they would filibuster the
president’s nominees to the agencies, knowing that neither agency
could operate without board members or a director. Then they would
create fake legislative sessions for the Senate during its recess,
intended solely to prevent Mr. Obama from making recess appointments
as an end run.

Astonishingly, a federal appeals court upheld this strategy on Friday.
Mr. Obama had declared that Congress was not really open for business
during its one-minute, lights-on-lights-off sessions intended only to
thwart him, and he made recess appointments. A three-judge panel of
the United States Court of Appeals for the District of Columbia
Circuit said his N.L.R.B. appointments were unconstitutional, buying
the argument of Republicans that the Senate was really in session.

The court even broke with the presidential practice of 150 years by
ruling that only vacancies arising during a narrow recess period
qualify for recess appointments.

White House officials said the administration would appeal the
decision to the Supreme Court, but if it is upheld, it will invalidate
scores of decisions made by the labor board over the last year.
Without lawfully appointed members, the board would lack a quorum and
could take no action, unable to police union elections or ensure that
companies treat unions properly. That is exactly the outcome hoped for
by business interests and the right, furious that a board under
Democratic control tends to rule in labor’s favor (after years of
ruling for business during the Bush years).

The decision also threatens the work of the consumer bureau, which has
been operating under a director, Richard Cordray, appointed during a
recess after Republicans filibustered his nomination. A similar
lawsuit is moving through the courts challenging his appointment.

The administration’s lawyers made a solid argument that a legislative
session during which no business takes place, and when no nominations
can be considered, is not a real session. The vast majority of
senators, in fact, were out of town. Used in this way, the
administration said, sham “pro forma” sessions prevented two
executive-branch agencies from performing their lawful duties. Both
agencies were created by majorities in Congress, but they were
undermined by minorities.

The court’s opinion took no notice of the underhanded nature of these
actions: Senate Republicans asked the House to remain in session
solely to prevent Mr. Obama’s recess appointments, and the
Constitution prevents the Senate from adjourning without the consent
of the House, even if it meets only for a minute every three days.
Using a cramped definition of “recess,” the panel’s
Republican-appointed judges allowed a minority to abuse the
recess-appointments clause of the Constitution for political ends.

The situation demonstrates how dysfunctional Washington has become
because of these Republican abuses. Although Democrats also used pro
forma sessions for this purpose under President George W. Bush,
Republicans have blocked Mr. Obama’s appointments at a far higher
rate, and they have gone much further by trying to shut down executive
agencies through use of the filibuster.

Democrats could have changed this by agreeing to curb filibuster
abuses this week, particularly on high-level presidential
appointments, but they squandered the opportunity. The court’s
decision demonstrates how their timidity is being used against them.
With no sign that Republicans are willing to let up on their
machinations, Mr. Obama was entirely justified in using his executive
power to keep federal agencies operating.

More:
http://www.nytimes.com/2013/01/26/opinion/a-court-upholds-republican-chicanery.html?hp