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by Marian Wang ProPublica, Dec. 20, 2011, 2:39 p.m.

 

It’s no secret that Republicans don’t like the idea of President Obama exercising his power to make recess appointments. As we noted [1] earlier this year, they’ve repeatedly used a procedural move to block the president from making this sort of temporary appointment, even though it’s a presidential power laid out in the Constitution. (Of course, the tactic isn’t specific to Republicans — Democrats used it too under the Bush administration.)

But now, as winter recess approaches, Senate Republicans have been trying a different tactic: holding up other appointments as a bargaining chip [2]. Senate Minority Leader Mitch McConnell has pledged to block the confirmation of three uncontroversial nominees for key banking regulator positions. Here’s how the Wall Street Journal described those nominees and what positions they’d fill:

The three nominees — Martin Gruenberg, Thomas Hoenig and Thomas Curry — would be charged with implementing last year’s Dodd-Frank financial-overhaul law, which imposes a raft of restrictions on the financial industry. They are expected to take a tough line on the nation’s largest banks, in a climate where both political parties are increasingly embracing to efforts to rein in the power of the nation’s largest financial institutions.

All three of Mr. Obama’s nominees have long histories as regulators and there was little controversy at their confirmation hearings.

At the heart of the standoff are fears that President Obama will use recess appointments to fill key vacancies in the new Consumer Financial Protection Bureau — a consumer watchdog agency that the GOP believes has too much power — and the National Labor Relations Board, the government’s independent arbiter of labor disputes.

Earlier this month, Republicans blocked the nomination of former Ohio attorney general Richard Cordray to head of the CFPB, though other Republicans have praised his qualifications [3]. Keeping the agency without a director, as we’ve noted [4], limits its powers over payday lenders, certain mortgage servicers, and other under-regulated parts of the financial industry.

They’ve also asked President Obama not to use recess appointments [5] to fill vacancies on the NLRB, which after December 31st essentially will cease to function because it will have too few members [6] to issue regulations and decide cases.

Republicans have targeted the federal agency [7] for the better part of the year [8], and a group of GOP lawmakers wrote a letter to the president this week, warning that if Obama makes recess appointments to the NLRB, it would set a “dangerous precedent” that could “provoke a constitutional conflict.”

But why that is isn’t exactly clear. President George W. Bush managed to seat more than a half dozen nominees [9] at the NLRB through recess appointments. And overall, President Obama has made somewhat fewer recess appointments than his predecessors — 28 so far, according to a recent Congressional Research Service report [10]

Many Democrats are getting nervous about the upcoming presidential election. Ominous, extensively reported articles by two of the best in the business—the New Yorker's Jeffrey Toobin and The Atlantic's Barton Gellman—outline Boss Trump's plot to keep control of the White House in 2021 no matter how the American people vote.
Trump is hardly making a secret of it. He's pointedly refused to commit to "a peaceful transfer of power."

"Well, we're going to have to see what happens," is how he answered the question. He added that after we "get rid of the ballots"—presumably mail-in ballots he's been whining about for weeks--"there won't be a transfer, frankly. There'll be a continuation."

Of course, Trump himself has always voted by mail, but then brazen hypocrisy is his standard operating mode. If you haven't noticed, he also lies a lot. Without prevaricating, boasting, and bitching, he'd be mute. And even then, he'd still have Twitter. He recently tweeted that the winner "may NEVER BE ACCURATELY DETERMINED" because mail-in ballots make it a "RIGGED ELECTION in waiting."
Gellman gets this part exactly right in The Atlantic: "Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.
"Trump's invincible commitment to this stance will be the most important fact about the coming Interregnum. It will deform the proceedings from beginning to end. We have not experienced anything like it before."
No, we haven't. However, it's important to remember that Trump makes threats and promises almost daily that never happen. Remember that gigantic border wall Mexico was going to pay for? Trump has built exactly five miles of the fool thing, leaving roughly two thousand to go.
His brilliant cheaper, better health care plan? Non-existent.
On Labor Day, Boss Trump boasted of his unparalleled success in strong-arming Japan into building new auto-manufacturing plants. "They're being built in Ohio, they're being built in South Carolina, North Carolina, they're being built all over and expanded at a level that we've never seen before."
Not a word of that is true. Two new plants, one German, another Swedish have opened in South Carolina, but construction began before Trump took office. Auto industry investment during Barack Obama's second term far exceeded Trump's. His version is sheer make-believe.
But back to the GOP scheme to steal the election.
First, it's clear that even Trump understands that he has virtually no chance of winning the national popular vote. He's been polling in the low 40s, with no sign of change. To have any chance of prevailing in the Electoral College, he's got to do the electoral equivalent of drawing to an inside straight all over again—winning a half-dozen so-called battleground states where he defeated Hillary Clinton in 2016 by the narrowest of margins.
At this writing, that looks highly unlikely. The latest polling in must-win Pennsylvania, for example, shows Trump trailing Joe Biden by nine points. That's a landslide. Trump's down ten in Wisconsin, eight in Michigan. And so on.
So spare me the screeching emails in ALL CAPS, OK? Polls were actually quite accurate in 2016. Trump narrowly defeated the odds. It can happen. But he's in far worse shape this time. Furthermore, early voting turnout is very high, with Democrats outnumbering Republicans two to one.
Hence, The Atlantic reports, "Trump's state and national legal teams are already laying the groundwork for post-election maneuvers that would circumvent the results of the vote count in battleground states."
The plan is clear. Because more Democrats than Republicans are choosing mail-in voting during the COVID pandemic, Trump hopes to prevent those ballots from being counted. Assuming he'll have a narrow "swing state" lead on election night, he'll declare victory and start filing lawsuits. "The red mirage," some Democrats call it.
"As a result," Toobin writes, "the aftermath of the 2020 election has the potential to make 2000 look like a mere skirmish." With Trump in the White House urging armed militias to take to the street.
Mail-in votes take a long time to count. Things could definitely get crazy.
True, but filing a lawsuit to halt a Florida recount was one thing. Filing suits against a half dozen states to prevent votes from being counted at all is quite another. Public reaction would be strong. Also, winning such lawsuits requires serious evidence of fraud. Trumpian bluster ain't evidence.
The Atlantic reports that GOP-controlled state legislatures are thinking about sending Trumpist delegations to the Electoral College regardless of the popular vote winner—theoretically constitutional but currently illegal.
Fat chance. If that's the best they've got, they've got nothing.
Anyway, here's the answer: Vote early, and in person*.

[Editor's note: In some states, receiving an absentee ballot means that a voter can no longer vote in person* or may have to surrender the absentee ballot, including the envelope in which it arrived, at their polling place. Please check with your local election authorities.]