UPDATED: Ezra Klein's Blog Gets it Wrong on Recess Appointments

Ezra Klein responds via Twitter. See below.

There’s so much wrong in this column from Ezra Klein’s blog at the Washington Post that it’s hard to know where to begin. Ezra is waxing partisan about the recess appointment of Richard Cordray to be President Obama’s head of the Consumer Financial Protection Bureau, trying desperately to find some justification for this unprecedented flouting of the Constitution. But Master Klein plays too fast and loose with the facts, even for a liberal wunderkind.

Let’s try to take them one at a time.

Ezra tries to lay blame for Cordray’s appointment at the feet of Republicans. This is a novel way to show support for a nomination, blaming the other side for its necessity. Unfortunately for Mr. Klein, it has the added disadvantage of being completely wrong.

“Yet in the current Congress, Republicans have been intentionally organizing “pro forma” sessions during their breaks so as to avoid recesses from technically taking place.”

Republicans have not been organizing pro forma sessions of the Senate. The Senate is controlled by Democrats. Republicans have no ability to organize a game of bridge in the Senate let alone an official session even if they wanted to. Would that they could because it would be pretty easy to get Republican proposals enacted by unanimous consent, wouldn’t it? Now, Ezra may be referring to the Republican-led House refusal to sanction a Senate recess of longer than three days (a point which we’ll get to later), but I doubt it. It is an undeniable fact that the pro forma sessions of the Senate are a creature of Harry Reid’s (D-NV) mind, and have been since President George W. Bush legally recess appointed John Bolton to serve as UN Ambassador.

Klein soldiers on, and along the way gets a bit confused about how long Congress lasts.

“As a side bonus, recess-appointing Cordray now rather than yesterday means his appointment will last through the end of 2013, rather than through the end of 2012.”

Wrong again. Recess appointments, when they are done legally, can only last until the end of the current session of the Senate, which coincides with the end of a Congress. Congresses last two years and are punctuated by a big national election. Klein may have forgotten that there is a big national election coming up later this year. So as we can see, this Congress, this Senate session, and Cordray’s “term” will end at the end of 2012 – if it lasts that long – not 2013.

Having made a mess of this column already, and perhaps realizing that he is floundering, Klein decides to spread the wealth around by appealing to an expert for backup. But Sarah Binder, a political scientist at George Washington University (interesting that Klein does not find a Constitutional Law scholar, but a political one), isn’t much help. Ms. Binder is as confused about the Constitution’s provisions on Congressional recesses as Ezra is.

“The practice of recess appointments has mainly worked off precedent, particularly a 1993 Justice Department memo suggesting that Congress has to be in recess for longer than three days before an appointment can be made. “But there’s no constitutional source to go back to,” says Binder”

Get better experts, Ezra. There is a Constitutional source, as alluded to earlier. One can certainly get why Klein missed it, since the Constitution is over a hundred years old and all, but Binder has no excuse. In fact, the 1993 memo Klein cites is based on the Constitution’s provision in Article 1, Section 5, clause 4, otherwise known as the Adjournments clause.

The clause states that neither house may adjourn for longer than three days without the consent of the other. The 1993 Clinton Justice Department very responsibly based its analysis of the recess appointment power on that clause instead of making up a precedent out of whole cloth as this White House has now done.

Even for Ezra Klein, this is embarrassing. Ezra has a job to do that involves carrying the president’s water, but this many mistakes can’t be tolerated by an allegedly serious journalistic institution like the Post. It may be a while before young Mr. Klein gives any Constitutional law lectures to Democrat staffers on Capitol Hill.

Update: Klein responded via twitter that the post in question was actually written by Brad Plumer. While I find Ezra’s use of the Ron Paul newsletter defense interesting, I must point out that Klein himself echoes all of the erroneous points made by Plumer in the first paragraph of this post, which he did write, therefore claiming them as his own. I stand by my article until Mr. Klein retracts Plumer’s post and corrects his own.