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Iowa political reaction to jobs report, recess appointments (updated)

by: desmoinesdem

Sat Jan 07, 2012 at 11:57:40 AM CST


The Bureau of Labor Statistics released new employment figures yesterday, showing nonfarm payroll employment up by 200,000 in December 2011, and the unemployment rate down slightly to 8.5 percent. Several members of Congress from Iowa cited the news a Their statements are after the jump.

I've also enclosed reaction from U.S. Senators Chuck Grassley and Tom Harkin to President Barack Obama's recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. While Harkin welcomed Cordray's appointment, Grassley slammed the president for "upending years of Senate practice and legal precedent." Grassley was among Senate Republicans who filibustered Cordray's confirmation last month.

desmoinesdem :: Iowa political reaction to jobs report, recess appointments (updated)
The full employment report can be found at the Bureau of Labor Statistics website. Excerpt:

Total nonfarm payroll employment increased by 200,000 in December. Over the
past 12 months, nonfarm payroll employment has risen by 1.6 million. Employment
in the private sector rose by 212,000 in December and by 1.9 million over the
year. Government employment changed little over the month but fell by 280,000
over the year. [...]

Both the number of unemployed persons (13.1 million) and the unemployment rate
(8.5 percent) continued to trend down in December. The unemployment rate has
declined by 0.6 percentage point since August.

I'm no economist, so I assumed the gains were mostly related to temporary holiday season hiring. The writers at the Bonddad blog suggest the report is genuinely "encouraging," because the monthly job growth exceeded the rate needed to keep up with population growth. That said, employment gains are still not strong enough to dent long-term unemployment or replace a significant number of jobs lost in the "Great Recession."

Politicians tend to view statistical data as supporting their point of view. I got a kick out of presidential candidate Rick Santorum's assertion that unemployment is falling thanks to "optimism that Republicans will take the White House." Give the man points for creativity, even if he doesn't have a clue how the economy works.

Three members of Congress from Iowa saw the December jobs report as proof that Congress needs to pass policies they have long advocated. Republican Tom Latham, who now represents IA-04 but is seeking re-election in the new IA-03, sent out this press release on January 6:

"An improvement in the unemployment rate is always welcome news, but Washington has not done nearly enough to end the economic uncertainty that still plagues American families, businesses and farmers.  Too many Americans continue to wake up every morning to grim economic circumstances and minds and a job market burdened with doubt.  

"The U.S. House of Representatives has approved nearly 30 jobs bills and legislation that would provide greater certainty for working families by extending the payroll tax holiday for a full year.  It's been my hope that the Senate would work with House lawmakers to finish the work that has begun in the interest of the American people and a sustained long-term economic recovery.

"After 35 consecutive months of unemployment above 8 percent, I continue to share the ever-growing frustration and anger the American people have over the bickering, finger-pointing, chest-thumping, saber-rattling, fractured process by all sides in Washington. I stand ready, as I always have, to work with any of my colleagues in Congress or at the White House - regardless of party affiliation - to find common-sense solutions that will foster an atmosphere for improved job creation in our country to bring stability back to our economy.  It's time for both parties to put aside petty partisan differences and come together to do the right thing for the American people."  

Congress is set to debate the payroll tax cut again in the next several weeks, because the deal struck in December expires at the end of February. Latham clearly does not want to be seen as obstructing further extension of this tax cut. His opponent in IA-03, Democratic Representative Leonard Boswell, slammed House Republicans and Latham in particular for supposedly not doing enough to extend the payroll tax cut before Congress went home for the holidays.

In his reaction to yesterday's employment report, Boswell wasn't specific about the kind of "job-creating" legislation Congress needs to pass. From a January 6 press release:

Des Moines, IA - Congressman Leonard Boswell (IA-3) released the following statement after today's report from the Department of Labor showed U.S. employers added 200,000 jobs and the unemployment rate fell to its lowest level in nearly 3 years.

"This is encouraging news which shows we've experienced 22 months of consecutive job growth in the private sector. The job market is steadily improving over nearly all major industries, but there is plenty of unfinished work to be done in Congress to pass job-creating legislation that will boost the economic recovery and strengthen our middle class. I am committed to doing just that in the new session."

Boswell and the other Iowa Democrats in the U.S. House, Dave Loebsack (IA-02) and Bruce Braley (IA-01) can credibly say they did all they could to make sure the payroll tax cut did not expire at the end of 2011. The three even crossed party lines to vote for a Republican version of the payroll tax cut extension.

Yesterday Loebsack cited the jobs report in a statement calling on House leaders to start negotiating right away to reach a longer-term deal on the payroll tax cut:

Washington, D.C. - Congressman Dave Loebsack today issued the following statement in response to the Department of Labor's announcement that the unemployment rate dropped to 8.5 percent in December and 200,000 jobs were added.

"The start of a new year affords a new opportunity to put aside the brinksmanship and actually do the work necessary to foster economic growth and create jobs.  Over the past year, Congress has come dramatically close to pushing our economy over the edge time after time and it cannot be allowed to happen again.  The Conference Committee assembled to extend the payroll tax for the full year must begin meeting immediately so hard working Iowans can have economic certainty.  The pocketbooks of families across Iowa cannot afford to have these games continue.

"I look forward to continuing my work across party lines to move the economy forward.  The private sector has begun to add jobs in spite of the actions of Washington.  It is time they are provided the support they need."

Earlier this week, Loebsack sent a letter to Speaker Boehner calling on him to immediately begin Conference Committee negotiations to extend the payroll tax for the rest of the year.  A copy of the letter can be found here.

I wish all the Democrats in Congress would read this column by economist Josh Bivens. Excerpt:

The simple history of how we got the payroll tax cut is pretty straightforward. In December 2010 the Bush tax cuts were set to expire, while the unemployment rate stood at 9.8 percent. The GOP Congress wanted an extension of the Bush tax cuts while the Obama administration wanted fiscal support to help lower unemployment. The primary outcomes of their negotiation were a two-year extension of the Bush tax cuts, a one-year extension of emergency unemployment insurance (UI) benefits, and a one-year payroll tax cut. This payroll tax cut in a sense supplanted the Making Work Pay (MWP) tax credit - a policy that President Obama campaigned on and which was part of the Recovery Act.

It seems obvious why Republicans didn't like the MWP credit - it was actually well-targeted at low- and moderate-income households and it was a tax cut associated with the Obama administration. So, to grease the wheels of getting more fiscal support into an economy that needed it, the administration acquiesced to this swapping out of the MWP credit for a payroll tax cut. [...]

But the payroll tax cut is pretty middling fiscal support in terms of jobs created per dollar it adds to the deficit. It is notably less efficient as a job creator than the MWP credit. It also provides a political hammer to opponents of Social Security who can claim that the cut has depleted the program's Trust Fund ahead of schedule, requiring cuts in benefits. [...]

Further, the way the payroll tax cut is being marketed by too many of its Democratic proponents is maddening. Essentially, they sound like Republicans, and tout the simple virtue of the extension as being families having to pay less in taxes, period. How many of us have heard the statistic about a family earning $50,000 in wages will save $1,000 from the payroll tax cut? I'd guess pretty much everybody who has dipped into this debate for even a second.

On the other hand, how many know the estimates of how many jobs will be created or preserved because of the increased economic activity it spurs? Very few of us who aren't economists, I'd imagine. Conservative estimates put it between 400,000 to 700,000 jobs. But it's the jobs that make this tax cut worth doing - unless progressives are willing to willing to accede to the Republican framing that all the economy and American families really need is "tax relief" - a phrase that actually appears in the Senate bill extending the payroll tax cut for two extra months.

This inability to connect economic policy to the larger problem of joblessness is a real problem with the debate over the payroll tax cut. This disconnect explains why the unemployment insurance extension bundled with the payroll tax cut have attracted so much less attention. After all, if all that matters is the first tranche of money, the payroll tax cut will affect many more households than the UI extension. But all serious economists agree that the extension of unemployment insurance is a far more efficient fiscal support - providing about 50 to 100 percent more jobs per dollar added to the deficit.

It won't help the economy for Democrats to focus excessively on tax cuts as stimulus, nor will it  help Democrats politically to make the 2012 election about which party will provide more "tax relief."

The big news from Washington this week was President Obama's recess appointments. The Senate has essentially prevented the Consumer Financial Protection Bureau from functioning by delaying and then blocking Cordray's confirmation. Three presidential nominees for the National Labor Relations Board have also been held up for a long time, so Obama named them (Sharon Block, Richard Griffin and Terence F. Flynn) as well as Cordray on January 4. Iowa's Senator Tom Harkin was "very pleased":

"I am very pleased President Obama has decided to appoint Richard Cordray to serve as the first director of the Consumer Financial Protection Bureau. Despite unprecedented Republican attempts to prevent the functioning of this Bureau, President Obama has made the strong and important decision to let this Bureau do its work. After facing years of unfair tricks and traps, hardworking middle class families need a cop on the beat looking out for their interests when they use their credit card, take out a student loan, or buy a home. Putting the middle class first is an important step to our economic recovery, and with this action today President Obama has helped us further down that path."

But Senate Republicans assert that the president abused his power to make recess appointments.

The political debate over Obama's appointment of Cordray hinges on the question of how long a legislative recess is necessary for a president to be able to install a nominee without Senate approval.

Republicans argue that precedent, over the past two decades, has been that no president can make such an appointment during a recess of less than 10 days.

Democrats contend that according to that standard, Republicans' move to hold "pro forma" sessions every three days while both chambers are on a longer recess would effectively block the White House from ever making a recess appointment. Such sessions are "a sham," Democrats and the White House argue - even though Senate Majority Leader Harry M. Reid (D-Nev.) used the same tactic to block President George W. Bush from making recess appointments in 2007 and 2008.

Complicating matters is the fact that the Constitution doesn't explicitly say how much time is needed for a recess appointment to be made.

In December, Senator Chuck Grassley framed his opposition to Cordray's appointment as a problem with the Consumer Financial Protection Bureau as currently construed. He didn't criticize Cordray or depict him as unqualified. Similarly, on January 4 Grassley's comment on the Obama appointment focused on the process, not on Cordray:

Sen. Chuck Grassley of Iowa, Ranking Member of the Committee on the Judiciary, today made the following comment on President Obama's appointment of Richard Cordray to head the Consumer Financial Protection Bureau.

"The President is upending years of Senate practice and legal precedent with this move. He's interpreting advice and consent as bypass and appoint.  It's an affront to constitutional checks and balances.  It's also an affront to the principle that every agency should have accountability, which the Consumer Financial Protection Bureau lacks.  The President is ignoring the longstanding advice of the Justice Department's Office of Legal Counsel, which has found that an adjournment of '5 or even 10 days' would not be sufficient for a recess appointment.  I'm planning to write to the Attorney General to ask if the President asked for a new Justice Department opinion prior to making this appointment and whether the Attorney General agrees with it.  Regardless, the President needs to make clear why there was a change in position and what rationale the White House counsel used to overturn more than 90 years of Justice Department precedent.  The White House should make the rationale public.  The public's business ought to be public.  And the President promised to run the most transparent administration in history."  

On January 6, Grassley sent out another press release including the letter he and other senators sent to Attorney General Eric Holder:

Senators Press Administration on Ignoring 90 Years of Legal Advice from Justice Department

WASHINGTON - Senate Judiciary Committee Ranking Member Chuck Grassley is leading Republican members of the Senate Judiciary Committee questioning the administration's decision to ignore more than 90 years of legal precedent in making four controversial recess appointments while the Senate remained in session.

The members argue that the Justice Department, including the Office of Legal Counsel, has clearly said that a congressional recess must be longer than three days - and perhaps at least as long as ten- in order for a recess appointment to be constitutional.  This position has become the stated position of the executive branch, in cases before the Supreme Court and other legal filings, regarding the required length of time for a recess in order for the President to make a recess appointment.  

"The Justice Department and the White House owe it to the American people to provide a clear understanding of the process that transpired and the rationale it used to circumvent the checks and balances promised by the Constitution," Grassley said.  "Overturning 90 years of historical precedent is a major shift in policy that should not be done in a legal opinion made behind closed doors hidden from public scrutiny."  

In their letter, the members wrote that they were, "Seeking information about what role, if any, the Department or OLC (Office of Legal Counsel) played in developing, formulating, or advising the White House on the decision to make these recess appointments.  Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter."

The letter continued to explain that the questions were necessary, "Given the Department's historical position on this issue and the President's unprecedented decision to unilaterally reject the years of Department precedent and Executive Branch practice."

The letter was signed by Senate Judiciary Committee members Grassley, Orrin Hatch of Utah, Jon Kyl of Arizona, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Mike Lee of Utah and Tom Coburn of Oklahoma.

Here's a copy of the text of the letter.  A signed copy of the letter can be found here.

January 6, 2012

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Dear Attorney General Holder:

   On Wednesday, President Obama deviated from over 90 years of precedent established by the Department of Justice (Department), and the Department's Office of Legal Counsel (OLC), by recess appointing four individuals to posts in the Administration, namely Richard Cordray as the director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board, despite the fact that the Senate has not adjourned under the terms of a concurrent resolution passed by Congress.  This action was allegedly based upon legal advice provided to the President by the Office of White House Counsel.  We write today seeking information about what role, if any, the Department or OLC played in developing, formulating, or advising the White House on the decision to make these recess appointments.  Further, we want to know whether the Department has formally revised or amended past opinions issued by the Department on this matter.  

   In 1921, Attorney General Daugherty issued an opinion to the President regarding recess appointments and the length of recess required for the President to make an appointment under Article II Section 2 of the U.S. Constitution.  The Attorney General opined that "no one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment [of 2 days] is taken.  Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution."   The reasoning of the 1921 opinion was given affirmative recognition in subsequent opinions issued by the Department, including opinions issued in 1960,  1992,  and 2001.  

   The Department has also weighed in on the applicable time period for recess appointments in legal filings in federal courts.  In 1993, the Department filed a brief in the federal district court for the District of Columbia arguing, "If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives."   Additionally, the Department, via the Office of the Solicitor General, argued in a 2004 brief to the Supreme Court, "To this day, official congressional documents define a 'recess' as 'any period of three or more complete days-excluding Sundays-when either the House of Representatives or the Senate is not in session."   This exact argument was also filed by the Solicitor General in another case during 2004.   Most recently, the Deputy Solicitor General argued before the Supreme Court in 2010 that "the recess appointment power can work in - in a recess.  I think our office has opined the recess has to be longer than 3 days."

   Taken together, these authorities by the Department clearly indicate the view that a congressional recess must be longer than three days - and perhaps at least as long as ten - in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.  

   Given the Department's historical position on this issue and the President's unprecedented decision to unilaterally reject the years of Department precedent and Executive Branch practice, we ask that you provide responses to the following questions:

(1)    Was the Department asked to provide legal advice to the President regarding the decision to issue recess appointments of Cordray, Block, Flynn, and Griffin?  If so, was a formal opinion from the Department prepared?  If so, which office at the Department prepared the advice?  If such advice was prepared, when will it to be made public?  

(2)    If a formal opinion was prepared, provide a copy of that opinion.  

(3)    Attorney General Opinions, such as the one offered in 1921, are essentially the forerunner to opinions that today come from the Office of Legal Counsel, providing legal advice to the President and executive branch on questions of law.  Such OLC opinions are accorded, in the words of one former head of OLC, a "superstrong stare decisis presumption."  Was the 1921 Attorney General Opinion withdrawn to make way for this new opinion of law that a recess appointment could be exercised when the Senate is in recess for only three days?

(4)    Has the Department formally withdrawn any other prior opinions issued by the Attorney General or OLC regarding the length of time a recess must extend prior to the President making a recess appointment?  If so, which ones were withdrawn or overturned?  Provide the basis for withdrawing or overturning those opinions.  

(5)    Given this unprecedented maneuver of recess appointments taking place while the Senate stood in recess for only three days, would it be the Department's position that the President could make a recess appointment during the weekend or when the Senate stands in recess from the evening of one weekday to the morning of the next weekday?

(6)    In 2010, the Deputy Solicitor General argued before the Supreme Court that "recess has to be longer than 3 days" for the President to use the recess appointment power.  Does the Department continue to support this position?  If not, why not?  

(7)    In the event that the Department has not withdrawn or overturned any of the prior opinions issued by the Attorney General or OLC, how does the Department reconcile those opinions with the decision of the President to make recess appointments while the Senate remained in Session?  If you believe the positions can be reconciled, provide a legal basis supporting this position.

(8)    Do you believe the President's decision to make these recess appointments notwithstanding the absence of an adjournment resolution is constitutional?  Please explain.    

   Thank you for your prompt attention to this matter and for responding no later than January 20, 2011.  We look forward to your detailed response.  

                       Sincerely,

1. 33 U.S. Op. Atty. Gen. 20, 25 (1921).
2. 41 U.S. Op. Atty. Gen. 463, 468 (1960) (stating "I fully agree with the reasoning and with the conclusions reached in that opinion.").
3. 16 U.S. Op. Off. Legal Counsel 15, (1992) (concluding that the President could make a recess appointment during an intrasession recess from January 3, 1992, to January 21, 1992).
4. 2001 OLC LEXIS 27.
5. Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment, at 24-26, Mackie v. Clinton, 827 F.Supp.56 (D.D.C. 1993), vacated as moot, 10 F.3d 13, (D.C. Cir. 1993).
6. Brief for the United States in Opposition, Miller v. United States, No. 04-38 (2004) available at http://www.justice.gov/osg/bri... (last visited Jan. 5, 2012) (citing
7. See Brief for the United States in Opposition, Evans v. Stephens, No. 04-828 (2004) available at http://www.justice.gov/osg/bri... (last visited Jan 5, 2012).
8. New Process Steel v. Nat'l Labor Relations Bd., No. 08-1457 pg. 50 (March 23, 2010), statement of Deputy Solicitor General Neil Katyal available at http://www.supremecourt.gov/or... (last visited Jan. 5, 2012).
9. It is noteworthy to add that according to the Congressional Research Service, prior to President Obama's recent recess appointments, no president in the past 30 years dating back to President Reagan, had made a recess appointment in a shorter recess than 11 days for an intersession recess and 10 days for an intrasession appointment.  See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions, pg. 3, Dec. 12, 2011.    

My hunch is that the only reason no president in the past 30 years made recess appointments under these circumstances is that no other president had to deal with a Senate essentially depriving him of recess power by holding "pro forma" sessions every three days. If Republicans want the Senate to stay in session year-round, they should stay in Washington and hold real sessions.

Any relevant thoughts are welcome in this thread.

UPDATE: The USA Today newspaper carried a short op-ed by Grassley depicting the Cordray recess appointment as a "major shift in the constitutional separation of powers." Grassley also criticized the Consumer Financial Protection Bureau for lacking accountability.

USA Today editors defended Obama's action.

This is certainly not the preferred way to get nominees in place and might be vulnerable to a constitutional challenge. But it at least is a gridlock breaker in polarized Washington. Ideally, presidents should have wide latitude to appoint heads of executive agencies, and the Senate's confirmation power should be used to prevent unqualified or unethical nominees from serving, a description that fits neither Cordray nor Warren.

Instead, nominations have become just another political game, with advice and consent used by senators - of both parties - to stymie nominees and even entire agencies they don't like. And like other political games, this one has gotten out of hand in today's poisonous partisan climate, leaving dozens of important government jobs and judgeships vacant. [...]

But from a common-sense standpoint, you'd think there is already enough hypocrisy in Washington without pretending that an empty Senate chamber where no business is conducted is really "in session."

Congress created the consumer protection bureau in 2010. The agency opened its doors in July. Obviously, it should have a leader. Sometimes, the government simply has to get going and do its job, no matter how badly obstructionists prefer gridlock.

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