Just a quick post – since you guys seem to want to discuss those recess appointments, and since they do raise some interesting issues that eventually get to the heart of constitutional government. (I’ll be transferring your comments from the other thread – though I’m leaving the Wall discussion where it was.)
There’s been some interesting conversation at Jonathan Bernstein’s site: His latest post on the topic discusses whether Republican obstructionism really deserves the term “Nullification,” and follows an earlier post on the question of who decides when a “recess” is really a “Recess.” Bernstein has been running his own personal campaign on this form of congressional sabotage of normal executive/administrative business, which he believes has gotten completely out of control in recent years. It’s arguably at least as harmful to good government as the de facto 60-vote Senate.
On the second of those posts, a commenter who calls himself “Conservative Teacher” calls the President’s actions “criminal,” echoing the language of rightwing observers like John Yoo and sundry think tankers and HotAirians, who claim to have discovered “tyranny” in the President’s action – as though Obama had declared himself Caesar and crossed the Potomac under arms, or at least, like Lincoln but with no cause, had suspended basic provisions of the Constitution.
The whole thing reminds me of a passage from Leo Strauss on the notion of a “just tyranny,” the “good Caesar” who arises by historical necessity to rescue a people from chaos (or to avenge its misdeeds):
Caesarism is just, whereas tyranny is unjust. But Caesarism is just in the way in which deserved punishment is just. It is as little choiceworthy for its own sake as is deserved punishment. Cato refused to see what his time demanded because he saw too clearly the degraded and degrading character of what his time demanded. It is much more important to realize the low level of Caesarism (for, to repeat, Caesarism cannot be divorced from the society which deserves Caesarism) than to realize that under certain conditions Caesarism is necessary and hence legitimate.
I’ll emphasize that Obama is not really or yet a Caesar, in my view, but I do sometimes wonder just how degraded and degrading our political culture has become, and whether the conflict over the constitutionality of these recess appointments isn’t a kind of premonition or rehearsal of total civic breakdown.
What the Republicans have done -building on a tactic apparently first deployed by the other party – may, as per Matt Glassman, qualify more as mere “Hardball” than as a 21st Century version of “Nullification” (the 19th Century version having been incompatible with national government and thus the preface to civil war), but it remains an example of the kind of challenge to self-governance that, multiplied out over the course of years, amidst waning national self-confidence and general and overwhelming skepticism regarding public institutions, would eventually, of necessity, likely prompt someone to cross the Potomac, destroying the DC Village even while intending, or pretending, to save it.
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Heh, Frog, it’s always good to read above the subtext;
…Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”
This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.