Second Bite At the Apple

Regular readers of the Washington Monthly may recall an article in the July/August 2012 issue of the magazine by John Gravois about the new Consumer Financial Protection Bureau (CFPB), which he called an intiative “too important to fail.”

The consumer bureau has provoked virulent opposition from Republicans ever since it emerged as the brainchild of Elizabeth Warren, the Harvard law professor turned progressive folk hero who is now running for Ted Kennedy’s old Senate seat in Massachusetts. Though the GOP couldn’t stop the creation of the CFPB, it did manage to put enough pressure on Obama to make him shrink from nominating Warren to serve at its head, a decision for which he was promptly vilified by liberals. Then, when Obama nominated [Richard] Cordray, Republicans held the appointment hostage, demanding structural changes to the bureau that would have made it more accountable to congressional committees and the industries that comfortably influence them. Most recently, in May, Glenn Hubbard, a top economic adviser to the Romney campaign, suggested to the Wall Street Journal that defanging the bureau would be a central agenda item in Romney’s economic strategy.

Obama got around the obstruction of Cordray’s initial appointment via a recess appointment–which could ultimately be overturned pending review of a recent three-judge DC Circuit ruling that such appointments were unconstitutional. But in the meantime, Cordray’s initial term is up, Obama has appointed him again, and Republicans are making the same demands they did a year ago that the agency submit itself to “congressional oversight” in a way that would radically restrict its powers over lending institutions.

Using a term that was pioneered by the Brookings Institution’s Thomas Mann and echoed by The Atlantic‘s James Fallows, TAP’s Jamelle Bouie is calling this latest series of threats an example of “the new nullification.” I understand the point, but I think today’s conservatives are close enough to asserting the old nullification–the nineteenth century doctrine that states can render void federal laws they dislike–that I’d sorta like to reserve the term for the revival of that antebellum outrage.

More technically, what today’s congressional Republicans are routinely claiming is the right to a second bite at the apple of amending (even drastically) duly enacted laws by holding hostage any subsequent nominations involving their implementation. It ranks right up there with GOP abuse of the filibuster to thwart the ability of duly elected congressional majorities to make law, and of duly elected presidents to enforce them. In that sense it could be just as bad as nullification, in part because it’s less dramatic than a state declaring itself lawless.

At a minimum, congressional Republicans need to be called out for this deeply destructive pattern of scofflaw behavior, and it’s as good a time as any to do so when they are behaving this way out of craven submission to the least popular institutions in America (with the possible exception of Congress itself).

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.