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."

The same rigid, ideologically motivated nyets have prevented Obama from appointing Richard Cordray to head the CFPB, thereby hobbling an agency that was created by Dodd-Frank to prevent the recurrence of another financial crisis.

Predictably, the Senate Republicans, raising wildly exaggerated fears about the CFPB, have worked hard to cripple this new branch of the Federal Reserve. First they put the kibosh on Obama appointing Elizabeth Warren. Since Obama blinked in that faceoff, Senate Republicans are counting on him doing the same thing with Cordray. If he does, it would be terribly demoralizing for pretty much everyone -- especially members of the public hoping for an effective CFPB -- except an energized Senate GOP minority.

While there are things that the CFPB can do even without a director -- here's a list of 10 to-do items, compiled by the National Consumer Law Center -- it is essentially crippled without a director. It can't regulate financial products from institutions that aren't banks, for instance. So all the Countrywide Financials out there are free of CFPB oversight, for the time being, as long as Cordray remains on the sidelines.

Still, at least it can do something. But that can't be said for the NLRB, which has been a target of Republican ideologues since the Reagan administration. Yesterday, the NLRB lost its three-member quorum. Under a 2010 Supreme Court ruling, the NLRB can't issue regulations or act against union-busting employers without a quorum.

That is precisely why -- apart from a general desire to prevent Obama from doing anything -- the Republicans are acting so ornery about this agency. They've not only prevented Obama from appointing Sharon Block and Richard Griffin to fill vacancies on the board, but have actually had the gall to send the president a letter demanding that he not overcome their tactics by engaging in a perfectly legal, and desperately needed, recess appointment. That's like throwing someone in a lake and demanding that he not climb out.

Obama hopefully won't be a wuss and won't back down, not at this crucial time. Any appointments made by Obama during the recess will be good through 2013. Just as George W. Bush made seven recess appointments to the NLRB for the purpose of imposing his anti-labor ideology on the agency, Obama should do the same thing to restore the NLRB to its original purpose, which is to protect worker rights.

Obama is not a stranger to recess appointments. He made recess appointments to the NLRB and 14 other executive branch vacancies early in 2010. Senate Republicans wrote him a strong letter back then too. To his credit, he ignored it.

It's hard to conceive of a more clear-cut method for Obama to show both his political base -- and Congress -- that he means business. And there's not a blessed thing Congressional Republicans can do about it. As David Arkush of Public Citizen pointed out in a blog post during the last recess-appointment tangle in 2010, Congressional Republicans, and specifically House Speaker John Boehner, are powerless to keep the House and Senate in session so that Obama can't make recess appointments.

It's right there in Article II, section 3, clause 3 of the Constitution. In the event of a disagreement between the houses of Congress on when to adjourn, "he the President may adjourn them to such Time as he shall think proper." No president has ever used this power. But, hey, there's no time like the present, if Boehner tries to throw his weight around.

Conservatives like to talk about "original intent," and how important it is for the president to follow the Constitution to the letter. He ought to do just that, and force the Senate to remain adjourned so that he can make recess appointments. Sure, it would be hardball, but for the purpose of preventing a minority of the Senate from imposing its will on the majority. If that wasn't the original intent of the Founders, I don't know what is.

Gary Weiss's forthcoming book, AYN RAND NATION: The Hidden Struggle for America's Soul, will be published by St. Martin's Press on February 28, 2012. Follow him on Twitter: @gary_weiss.
Gary Weiss has covered Wall Street wrongdoing for almost a quarter century. His coverage of stock fraud at BusinessWeek won many awards, and included a cover story, �The Mob on Wall Street,� which exposed mob infiltration of brokerages. He uncovered the Salomon Brothers bond-trading scandal, and wrote extensively on the dangers posed by hedge funds, Internet fraud and out-of-control leverage. He was a contributing editor at Conde Nast Porfolio, writing about the people most intimately involved in the financial crisis, from Timothy Geithner to Bernard Madoff. His book "Born to Steal" (Warner Books: 2003), described the Mafia's takeover of brokerage houses in the 1990s. "Wall Street Versus America" (Portfolio: 2006) was an account of investor rip-offs. He blogs at garyweiss.blogspot.com.

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