From Insider Online;
InsiderOnline Blog: January 2012
Frustrated Politicians Are a Sign the System Is Working
Nowhere does the Constitution say the President gets more power whenever Congress doesn’t do what he wants it to do. The President seems to think otherwise. Last week he explained his making of recess appointments when Congress is not in recess by saying: “I refuse to take ‘no’ for an answer.” But, as former federal judge Michael McConnell explains, sometimes taking no for an answer is the President’s only constitutional options:
It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.More: “Democrats and Executive Overreach,” Wall Street Journal, January 10, 2012.
It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.
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