The Do-Nothing Congress


The Republican form of government is the highest form of government; but because of this it requires the highest type of human nature-a type nowhere at present existing.

— Herbert Spencer, Essays [1891].  The Americans

It’s come to this.  From the moment some years ago when the Senate’s minority leader, Mitch McConnell, said that his party’s goal during the remainder of President Obama’s first term was to prevent Mr. Obama’s re-election, Republicans in Congress demonstrated their single minded mindless commitment to the task by using the filibuster to make sure no legislation of significance was passed that would distract them from achieving their goal.

To their dismay, the 2012 election demonstrated that notwithstanding their herculean efforts, their goal had eluded them.   Losing the election, however, wasn’t the worse thing that happened to them.  The worst thing that happened to them was that they had forgotten what else they were supposed to be doing as members of Congress and they therefore did nothing.  They even did nothing to avoid the sequester that is to take effect on March 1, an event that promises to have catastrophic consequences for the countless governmental operations that it will affect. Confused and puzzled the Republicans, accompanied by their democratic colleagues, went on vacation for 10 days hoping that while gone, they could figure out what it was they were supposed to be doing.

The filibuster they used to keep laws from being passed had more than one purpose.  In addition to keeping laws from being passed it was used by the Republicans to keep governmental agencies from functioning.  They accomplished that by blocking the appointment of individuals to those boards without whose presence the boards could not function.  Republicans did that because they did not like the fact that boards functioned while they did not.

Since the president thought the whole purpose of having boards such as the National Labor Relations Board and the Consumer Financial Protection Bureau was to enable them to do the tasks assigned to them when created (just as Congress was assigned certain tasks by the country’s founders) he took advantage of the many vacations that Congress rewards itself with (in 2013 it will have 60 days of vacation, euphemistically referred to as “State Work Periods”) to make those appointments when Congress was on vacation.

On January 4, 2012, the president announced three appointments to the National Labor Relations Board.  Without those appointments the board could not act since it lacked a three-person quorum. Those who think the country is governed best when governed least or, in the case of emasculated agencies, not at all, went to court to ask the court to rule that when Congress was officially on vacation it was not in fact on vacation and the president could not make recess appointments but had to go along with Congress’s charade that when its members were not in Washing they were, in fact, in Washington.

The Federal Court of Appeals for the District of Columbia, using the well known judicial doctrine of  “now you see them-now you don’t,” agreed with the plaintiffs.  The Court said the president could not consider the Congress to be on vacation when it was on vacation and, therefore, he could not make recess appointments to the National Labor Relations Board. The court said the appointments were invalid. As a result, said the court, a decision made by the NLRB in the case of Noel Canning v. NLRB was void.  During the time after the January 2012 appointments were made, the NLRB issued more than 200 rulings, all of which may now be invalid since they were made by a board that lacked a quorum.  (It is possible that for each rule that was issued during the period the Board lacked a quorum, separate lawsuits will have to be filed by those seeking relief from the rule.)

The NLRB was not the only agency Republicans hoped to keep from functioning. The Consumer Financial Protection Bureau (CFPB) is another.  Republicans filibustered the appointment of its proposed chairman, Richard Cordray.  Many of its tasks cannot be performed without a chairman.  Mr. Cordray was given a recess appointment by the president.

Following his appointment, the agency has, among other things, taken steps to prevent mortgage lenders from encouraging borrowers to take out unaffordable loans, ended mortgage lenders’ practice of paying brokers higher commissions when they sell higher interest rate loans to borrowers and issued rules regulating credit cards, mortgages, student loans, and credit reporting agencies.  It has given consumers a way of filing complaints about errors on credit reports by establishing a complaint portal.  More recently it has begun examining bank involvement in the payday lending scandal that gives borrowers the opportunity to pay interest rates as high as 500%.

If Mr. Cordray’s recess appointment is successfully challenged many of the reforms and investigations undertaken during his tenure may be stopped or invalidated.  The consumer will be the loser.  The Republicans will be the winners.  Winning, rather than governing, is apparently, the point.


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