Premium ContentMouse over Home then click on Premium Content for information.WASHINGTON — Long-standing tensions between the executive and legislative branches of government have escalated over recent appointments made by President Barack Obama.
U.S. Sens. Mike Johanns of Nebraska and Chuck Grassley of Iowa joined with nearly all of their fellow Senate Republicans on Friday in announcing that they intend to file court briefs challenging the constitutionality of the appointments Obama made last month.
Certain presidential appointments must be confirmed by the U.S. Senate in its constitutional role of giving advice and consent.
The president is allowed to make appointments when the Senate is in recess — a provision former President George W. Bush, a Republican, exploited to get around the Senate.
To block such appointments — even during holiday periods, when no work is being done — one or two senators can gavel in and out of sessions in a matter of seconds. Senate Republicans held such pro forma sessions from Jan. 3 to Jan. 23.
Obama made several appointments Jan. 4. The administration says the Senate was clearly in recess, despite the pro forma sessions.
Obama's move prompted howls of protest from Republicans, who say that under the administration's interpretation, the president can simply bypass the Senate by making appointments whenever senators break for lunch.
As the top GOP member of the Judiciary Committee, Grassley described the appointments as an "outrageous and unconstitutional power grab."
"The president is upending years of Senate practice and legal precedent with this move," Grassley said. "He's interpreting advice and consent as bypass and appoint. It's an affront to constitutional checks and balances."
Obama announced several recess appointments to the National Labor Relations Board as well as Richard Cordray as head of the Consumer Financial Protection Bureau, which was created in the overhaul of Wall Street regulations. Republicans have been resisting any appointment to the bureau, which they say wields too much power.
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When Cordray appeared before the Senate Banking Committee last week, some GOP senators skipped the hearing as a protest.
Johanns showed up but devoted his time to questioning the legitimacy of the appointment.
"I can't imagine how anybody could maintain, under the circumstances, that your appointment and your service is valid," Johanns told Cordray. "And I can't imagine, then, based upon the precedent that I see, how the actions you're taking will be upheld. And I think that's a very, very serious consequence for our nation."
Cordray pointed to a Justice Department analysis supporting his appointment.
Sen. Ben Nelson, D-Neb., said he doesn't know if Cordray's actions in office will hold up. That will be decided by the courts. But he said when lawmakers try to hold up presidential appointments, the executive branch will respond.
"You have to expect that the governor or the president is going to try to use whatever his or her powers are ... to try to get something done," Nelson said.
It's not clear how Republicans will treat future appointments.
They could protest by blocking any future appointments the president makes, although such a move could play into Obama's hands as he campaigns for re-election against a "do-nothing'' Congress.
Grassley said last week that he and his colleagues are working on their strategy.
"The game plan is still being thought out," he said.
Contact the writer: 202-630-4823, joe.morton@owh.com
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