It’s being reported today that President Obama will be appointing Richard Cordray to the Consumer Financial Protection Bureau (CFPB) by recess appointment. This is news because it represents something of a final straw in the Nullification Crisis, and by using the recess appointment while Congress is technically in pro-forma session Obama is setting quite a precedent. Kevin Drum responds to the news:
Apparently President Obama has decided that playing patty cake with Republican senators is no longer a winning proposition, and he now plans to make a recess appointment of Richard Cordray to head up the new Consumer Financial Protection Bureau despite the fact that the Senate is technically in a “pro forma session” and hasn’t recessed. Politically, this is pretty defensible: Senate Republicans have refused to allow a vote on Cordray not because of any problems with Cordray himself, but because they simply wantto prevent the CFPB from functioning. They’re opposed to any CFPB head. Since the CFPB was created by a vote of Congress and the signature of the president, this is little more than modern-day nullification.
Really, though, the question that will be coming up in the days ahead will be “Is this legal?” Ezra Klein reports:
“The crux of the matter here is that the Constitution doesn’t tell us what constitutes a recess,” explains Sarah Binder, a political scientist at George Washington University. 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. Either way, Republicans could well take this to court — a route Democrats tried unsuccessfully in 2004 when George W. Bush recess-appointed William Pryor to the 11th Circuit Court of Appeals.
Of course, the pro-forma tactic of obstructing the President’s ability to exercise his recess appointment power has been judiciously used by both parties. Simultaneously, both parties have decried the tactic but I can’t help but imagine that 2012 will be the year that “Obama Destroys Constitution” grabs the headlines for doing what Bush did 171 times – with the key caveat that it wasn’t done in the face of a tactic that one Bush legal aide described as serving “[…]but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.”
*Update – Dave Weigel puts it best:
This is mostly cant. 1) It’s not “entirely unprecedented,” because the administration (as ThinkProgress blogger Ian Millhiser has argued for weeks) was xeroxing a ploy by Teddy Roosevelt. 2) Same with “centuries.” 3) How does anyone in Congress type the phrase “checks and balances” without collapsing in a giggle-heap? Republicans were effectively nullifying the leadership of an agency created by a previous Congress because, dagnabbit, they wished it hadn’t been created.