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Obama's New Year's Resolution: Don't Be a Wuss

NEW YORK ( TheStreet) -- Could Barack Obama pull off a Harry Truman?

That's the implication of the murmurings emanating from Washington, as reported by the New York Times on Sunday, that Obama will be running against Congress in the 2012 campaign, very much the way Truman rode the "do-nothing Congress" to victory in 1948.

This is, of course, a pretty obvious path for Obama, and that raises the question: Will it work?

I think the answer is pretty close to yes. But I would add a condition. Yes, it will work, but only if Obama shows more gumption in dealing with today's do-nothing Congress than he has in the past. And I suggest that this will happen only if Obama abandons his failed strategy of reconciliation with Congress. He should make recess appointments to fill vacancies wherever they may exist -- principally at the Consumer Financial Protection Board and the National Labor Relations Board, where Republican obstructionism has hampered the operation of those two agencies.

Obama really has nothing to lose. Certainly not the goodwill of Congressional Republicans, who haven't shown any themselves. By doing this, he'd not only do some tangible good for the people who'd elect him, but he'd show the American people that he has the intestinal fortitude to be elected for a second term. These are fights that he can win, and there's nothing the public loves more than a winner. It would be Obama's New Year's resolution: Play hardball.

There's plenty of precedent for a recess-appointment binge. Here's a Congressional Research Service study fresh off the presses that describes the ins and outs of recess appointments. Note a short adjournment does not count as a recess.

For that reason, Republicans in the Senate saw to it that there would be 10 pro forma sessions between the recess on Dec. 17 and Jan. 23, when the Senate resumes its regular schedule. But as lawyer and commentator Victor Williams points out in the National Law Journal, those sham sessions don't impede the president's ability to make recess appointments. The partisanship of the Republican minority in the Senate has been shameless.

Thanks to Republican opposition to a cloture motion, the Senate in December failed to confirm a highly qualified nominee to the U.S. Court of Appeals for the D.C. Circuit, Caitlin Halligan. The failure of the cloture vote was described by Caroline Fredrickson, president of the American Constitution Society, as "unprecedented obstructionism."

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