Friday, January 6, 2012

The Recess Appointments

“Why Richard, it profits a man nothing to give his soul for the whole world... but for Wales?”

That line of Thomas More from A Man For All Seasons comes immediately to mind in the constitutional controversy that’s resulted from the President’s recent recess appointments.  Constitutional challenges between the respective branches shouldn’t be entered into lightly and yet here we are for appointments to a new Consumer Financial Protection Bureau and the NLRB or probably more accurately to help get Barack Obama re-elected. 

On the subject, a few observations:

1)  As I understand it the recess appointment procedure set forth in the Constitution stems from the long period of time in which congress was then out of session and should also be read in the context of the far more limited and focused government of the time.  Appointments here were to positions that were essential to a functioning government, not to an agency yet to get off the ground.  And John Steele Gordon puts his finger on something important when he points to the language being “the” recess, rather than “a” recess.   In short, the allowance for recess appointments should be narrowing, if not going away entirely, instead of expanding.

2)  The matter of the pro-forma congressional sessions is harder to work out.  First, the stall tactic is perverting the advice and consent power by being applied not so much to the appointee as to the agency.  Republicans aren’t so much blocking Cordray as blocking the CFPB resulting from passage of Dodd-Frank.  This shouldn’t be supported.

That said, the way the CFRB is set up in Dodd-Frank is a travesty.  In effect, the new agency has been set up without any congressional control including the most basic power of the purse.  Congress can override the President and assert control over foreign policy by not funding engagements, but somehow in the mind of Chris Dodd and Barney Frank a new regulatory body shouldn’t be so constrained.  This is absurd; the stuff of banana republics.

3)  In his column on the subject today Jonah Goldberg correctly puts the focus on honor though in only going after Harry Reid his reach is too limited.

Related to which, what the entire fiasco brings up is something I’ve been thinking about for awhile now.  It is only an impression with little if anything in the way of concrete evidence to back it up, so take it for what it’s worth.  But I think this an example of a tendency on the part of the boomer and subsequent generations to operate with little or no restraint other than explicit rules or laws.  The conditional considerations which exist in a moral practice above and outside of one’s particular profession or office have become non-operative.  There isn’t anything that isn’t done because such and such “just isn’t done.”  And I don’t see how a civilization can function very well when the sentiment of restraint is absent.  To operate in such an environment is akin to having a conversation in which the philosophical meaning of every word is examined and disputed.  It isn’t just philosophy that in Oakeshott’s words require “conditional platforms of understanding” but all institutions.  Right now to a considerable extent we don’t have that and until we regain it we’ll be in trouble.

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