Who Has the Fortitude of Robert Byrd Today?

COMMENTARY Political Process

Who Has the Fortitude of Robert Byrd Today?

Feb 26, 2012 4 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

What are conservative members of Congress doing to combat President Obama’s unconstitutional “non-recess” appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau? Not much.

Never mind that Obama’s circumvention of the Senate “is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress,” as The Heritage Foundation’s Edwin Meese and Todd Gaziano put it.

Yes, several House committees have conducted or scheduled hearings on the purported recess appointments. That’s a good start. But Congress should do much more.

Talk is cheap. Several conservative senators have condemned the president’s actions and sent a letter to Harry Reid asking him to explain his change from opposing Bush recess appointment during pro forma sessions to supporting Obama’s appointments. But none have attempted to use their authority to actually do something about it. This failure will further depress voters who expected conservatives in Congress to use their new numbers to stop abuses.

That is in stark contrast with what liberals have done in the past. Former Senate Democratic Leader Robert Byrd was never afraid to protect the Senate’s prerogatives. Once when he was in the minority, Byrd held up more than 70 nominations in every area of the government, including ambassadors, assistant secretaries, federal circuit and district court judges, and members of many agencies, commissions, and boards. He even put a hold on the promotions of more than 5,000 military personnel. More importantly, when Sen. Byrd took action, his fellow Democrats enforced his stand.

What was Byrd so angry about? President Reagan appointed seven individuals during the August Senate recess in 1985. Byrd argued that the several-week August recess did not qualify as a “protracted recess” to permit such appointments. He told the president that “any other interpretation of the recess appointments clause could be seen as a deliberate effort to circumvent the constitutional responsibility of the Senate to advise and consent to such appointments.”

Byrd’s view of the recess appointments clause departed from prior precedent and legal opinions from the DOJ Office of Legal Counsel. Even so, he had the courage of his convictions and was willing to bring all presidential nominations to a complete halt. Although President Reagan did not agree with Byrd’s constitutional position, he finally agreed to give advance notice so that Senate leaders could comment on the potential recess appointments and possibly consider not recessing for more than three days.

Why did President Reagan, who didn’t flinch in negotiations with the Soviets and fired the PATCO strikers, agree to Sen. Byrd’s demands? Because compared to those situations, a president can do very little in the face of a sustained Senate filibuster of his nominees.

Yet to date, senators have taken no meaningful action to oppose President Obama’s unlawful appointments. There has been no statement from senators of either party, who should be concerned about this violation of the Constitution, that they intend to delay any of the president’s other nominations. No one has even tried to force a vote to put senators from the president’s party on record regarding his actions.

Instead, only two weeks after the president’s unilateral action, senators voted to confirm John M. Gerrard as a district court judge. There were only 16 votes against confirmation — all Republicans without a single Democrat — and there was no attempt to raise the issue of the president’s other illegal appointments. Twenty-six Republicans voted in favor of confirmation, joining Democrats in essentially accepting, lemming-like, the president’s demonstrated contempt for the Senate. Five Republicans, four Democrats, and one independent did not bother to vote. On Feb. 9 the Senate confirmed Cathy Ann Bencivengo as a judge in California in an even worse showing (90 to 6), and on Feb. 17 senators caved again, including 10 Republicans, confirming Jesse Furman to be a judge in New York.

There is also no evidence that the House or Senate will take any of the other actions available, such as cutting the NLRB’s budget or passing legislation banning any federal funds from being used to enforce any orders or regulations issued by the Consumer Financial Protection Bureau until the president voids his unconstitutional appointments. The House needs to do more than just hold hearings to enforce its constitutional decision not to consent to a Senate recess.

As for the Senate, it operates almost entirely on “unanimous consent.” Unlike the scene in “Mr. Smith Goes to Washington” when Jimmy Stewart is trying to stop a corrupt bill, the Senate is almost entirely empty from day to day as it conducts its routine business. Bills are passed by unanimous consent unless someone objects (which is rare). There are almost never quorum calls by a senator, which can be used as a delaying tactic because of the difficulty of rounding up enough senators for a quorum.

It would take only one senator standing up for constitutional principles and the rule of law to get the ball rolling and shame his colleagues into joining him to fight the president’s tyrannical actions. He could hold up all of the president’s nominations and bring the Senate to a standstill through quorum calls and continuous objections to unanimous consent motions. Of course, he or she would have to be a real leader and get other senators to follow him. His party’s leadership ought to actually lead (or at least provide strong support) but even if they don’t, he would have put them to the test. Robert Byrd certainly had no problem convincing his minority coalition to follow, even when his particular view of recess appointments was much less clearly right than the position that should be advanced today.

Some in the Senate may be concerned about taking any action that they think might make them look obstructionist and play into the president’s election theme. But it is one thing to be obstructionist in stopping budget cuts or curtailing deficit spending; it is quite another to be obstructionist against abusive behavior.

Conservatives in the Senate who fail to act do so at the nation’s peril — and their own. Doing nothing about the president’s unlawful behavior will not only further damage the Constitution and the rule of law. It will demonstrate a fundamental unwillingness to fight for the most important principles that underlie our republic.

Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation.

First appeared in The Daily Caller