One interesting structural aspect of U.S. governance is the ways by which minorities can prevent, delay and hinder attempts by the ruling majority to enact their preferences. The most familiar measure is, of course, the use of courts through judicial review to invalidate majoritarian accomplishments. But the legislature itself has created tools to foil majoritarian policies.
The most familiar tool the legislature can use is the filibuster, which allows a minority group in the Senate to paralyze the passing of a bill, unless 60 senators get together and bring the debate to a close, in what is known as a cloture (the use of the filibuster in the House of Representatives stopped in 1842). The filibuster received a lot of attention during the recent healthcare bill debate. But of course there are other tools. For example, the minority party can call for delays in voting on presidential nominess, permitted by Senate Rules. The nomination of Attorney General Eric Holder was delayed because of the use of such rules. This has proven a very effective way for minorities to block presidential appointments that require Senate confirmation.
What is interesting, however, is that this is not the end of the game. Just like the minority can invoke rules to obstruct the majority, the majority can overcome the minority objections by invoking a different set of rules. So, for example, the majority can invoke cloture, and as we saw recently, it has an option of reconciliation and deem and pass, a.k.a the self-executing rule or the the Slaughter Rule.
In the example given above, of blocking presidential nominations, the President can take advantage of the Senate being in recess, and appoint persons until the end of the Senate's next term (end of 2011). This is exactly what Obama is doing right now, by appointing 15 people to executive positions, people whom the Senate delayed their confirmation.
While the New York Times is calling the instrument of recess appointments "blunt," the foregoing analysis demonstrates that there is nothing unusual about this. As the NYT admits, President Bush made 170 recess appointments to President Clinton's 140. In a political structure that has rules allowing both the majority and the minority to impede and overcome one another, this is "fair game" and nothing to get excited over. Indeed, the Republican delays are simply a way for them to postpone Obama from actuating his policies, those for which he was elected. Recess appointments are thus a valuable tool in overcoming rigid constitutional requirements of Senate confirmations.
The most familiar tool the legislature can use is the filibuster, which allows a minority group in the Senate to paralyze the passing of a bill, unless 60 senators get together and bring the debate to a close, in what is known as a cloture (the use of the filibuster in the House of Representatives stopped in 1842). The filibuster received a lot of attention during the recent healthcare bill debate. But of course there are other tools. For example, the minority party can call for delays in voting on presidential nominess, permitted by Senate Rules. The nomination of Attorney General Eric Holder was delayed because of the use of such rules. This has proven a very effective way for minorities to block presidential appointments that require Senate confirmation.
What is interesting, however, is that this is not the end of the game. Just like the minority can invoke rules to obstruct the majority, the majority can overcome the minority objections by invoking a different set of rules. So, for example, the majority can invoke cloture, and as we saw recently, it has an option of reconciliation and deem and pass, a.k.a the self-executing rule or the the Slaughter Rule.
In the example given above, of blocking presidential nominations, the President can take advantage of the Senate being in recess, and appoint persons until the end of the Senate's next term (end of 2011). This is exactly what Obama is doing right now, by appointing 15 people to executive positions, people whom the Senate delayed their confirmation.
While the New York Times is calling the instrument of recess appointments "blunt," the foregoing analysis demonstrates that there is nothing unusual about this. As the NYT admits, President Bush made 170 recess appointments to President Clinton's 140. In a political structure that has rules allowing both the majority and the minority to impede and overcome one another, this is "fair game" and nothing to get excited over. Indeed, the Republican delays are simply a way for them to postpone Obama from actuating his policies, those for which he was elected. Recess appointments are thus a valuable tool in overcoming rigid constitutional requirements of Senate confirmations.
Dear Mr. Shinar,
ReplyDeleteMy Constitutional Law professor assigned your comments to our class. While I agree with its overall theme, I cannot help but question your statement that Obama is being delayed "from actuating his policies, for which he was elected." The portion of this with which I take issue is in relation to health care, which I perhaps wrongfully assume is at least part of what you assert elected him. However, if this was a policy for which Obama was elected, then why, in the process of accomplishing it, does he not have the same support he did during the election?
Dear Anonymous,
ReplyDeleteThanks for commenting. If I understand you correctly, I think you raise two separate issues here. One is that of recess appointments, the second being a different level of support for the President when he was elected and when he tries to affect the policies for which he was elected.
As for the point about recess appointments, these appointments, as far as I know, have nothing to do with health care. They are appointments for various agency positions which have been vacant for about seven months. The reason they are vacant is the usual partisan politics where the minority tries delay the President from doing what he wants, which is another term for enacting his preferred policies, presumably for which he was elected.
As to the second point, which I think is interesting, that's a more difficult issue. It's true that support for a policy can change over time, and it's possible that if the President were to stand for a vote today, his health care plan would not be approved by the voters. However, I don't think this is what's going on here. Though the President encountered resistance from some vocal segments of the populations (for example the Tea Partiers), his problem had to do with institutional design; namely, not having 60 votes in the Senate after Scott Brown was elected from Massachusetts. The point to keep in mind is that the support the President does or does not have in Congress does not necessarily reflect the polity's considered position as well, since Congress's composition is also determined in election cycles that are not necesaarily aligned with the presidential elections.
There is always a problem regarding preferences at T1 and T2, when T2 is in the interim period before elections. That problem, however, is not unique to the presidency, but occurs in every elected body. Constitutional theory does not have an institutionally adequate system (as opposed to media, public opinion, etc.) of dealing with changed preferences, short of holding elections that reflect the new power structures. This is why, among other things, we have regular elections. Until those elections take place, and given the empirical difficulties of gauging exactly what the public thinks at T2, this system is probably the best we have.