Quick note on the specific recess appointments

Keeping it specific.

I’ve read and heard several questions about why the President wouldn’t also use the occasion yesterday to appoint all many of other vacancies along with the CFPB and NRLB appointments. As Ezra Klein puts it, this is really about the agencies (my emphasis in bold):

The answer is that, without them, the institutions they’re intended to lead will fail. Obama’s maneuver was about the agencies, not the appointees. In the absence of a director, the CFPB can’t exercise its powers. The expiration of Craig Becker’s term on the NLRB, meanwhile, means the board is about to fall from three members to two members — a number that the Supreme Court has ruled is less than a legal quorum, and so a number that means the NLRB cannot make binding rulings.

This is not an accident: Republicans have straightforwardly argued that they would obstruct the confirmation of any and all nominees to the CFPB until the Obama administration agreed to radically reform the agency. They were, in other words, using their power to block nominations to hold kill or change agencies that they didn’t have the votes to reform through the normal legislative order. Much the same has been happening at the NLRB. A That’s what Mann means when he invokes “nullification”: just as the original nullification crisis was about states refusing to implement federal laws that their representatives did not have the votes to overturn, the modern-day incarnation features Republicans refusing to implement laws they don’t have the votes to overturn. And this is what Obama is fighting.

Indeed, this is what made this whole ordeal a Nullification Crisis in the first place. In this respect the President is making a very strong, very narrow point about the specific Republican attempt to shut down – or not even start in the case of the CFPB – government agencies created or pursuing duly-enacted laws they cannot affect through legislation.


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