Obama defies Congress with 'recess' picks
President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau and three new members to the National Labor Relations Board — moves Republican lawmakers said amounted to an unconstitutional power grab.
The president acted just a day after the Senate held a session — breaking with at least three different precedents that said the Senate must be in recess for at least three days for the president to exercise his appointment power. Mr. Obama himself was part of two of those precedents, both during his time in the Senate and again in 2010 when one of his administration's top constitutional lawyers made the argument for the three-day waiting period to the Supreme Court.
Mr. Obama tapped former Ohio Attorney General Richard Cordray to head the CFPB, and named three others to the labor board — all of which had been stymied by congressional Republicans who said Mr. Obama is accruing too much power to himself through those two agencies.
In strikingly sharp language, Republicans said the Senate considers itself still in session for the express purpose of blocking recess appointments, and the move threatened to become a declaration of war against Congress.
"Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people," said Senate Minority Leader Mitch McConnell, Kentucky Republican.
GOP House Speaker John A. Boehner called the move "an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department."
"The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution," the Ohio Republican said in a statement.
The White House, though, argues Republican senators have been stonewalling his nominees for so long that Mr. Obama had no choice but to circumvent them.
The president introduced Mr. Cordray during a trip to Ohio Wednesday, telling a supportive crowd that the Senate Republicans' ongoing blockade of his nomination "inexcusable."
"I refuse to take 'No' for an answer. I've said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them," Mr. Obama said.
CPFB supporters has said the lack of a top executive has blocked the fledgling agency from taking on a number of tasks in its mandate to police the financial sector and protect consumers from fraud. Mr. Cordray was accompanying the president on the trip, and briefly spoke to reporters.
He said he would begin work immediately, adding: "We're going to begin working to expand our program to non-banks, which is an area we haven't been able to touch until now."
The Constitution gives the president the power to make appointments when the Senate is not in session and able to confirm them. Traditionally, that has been understood to mean when the Senate has adjourned for a recess longer than 10 days, and a Clinton administration legal opinion said a recess must be at least three days.
Mr. Obama's own top constitutional lawyers affirmed that view in 2010 in another case involving recess appointments. Asked what the standard was for making recess appointments, then-Deputy Solicitor General Neal Katyal told the justices the administration agreed with the three-day rule.
"The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than 3 days," Mr. Katyal said.
Mr. Katyal, who is now a professor at Georgetown University, did not immediately respond to an email seeking comment on the president's move.
The three-day rule was also the precedent Mr. Obama and his fellow Senate Democrats followed in 2007 and 2008 when they were trying to block then-President George W. Bush from making recess appointments.
"I am keeping the Senate in pro forma to prevent recess appointments until we get this process back on track," Senate Majority Leader Harry Reid, Nevada Democrat, said on Nov. 16, 2007, as he announced his strategy of having the Senate convene twice a week for pro forma sessions.
On Wednesday, though, Mr. Reid reversed course and said he backed the president's move.
"I support President Obama's decision to make sure that in these tough economic times, middle-class families in Nevada and across the country will have the advocate they deserve to fight on their behalf against the reckless practices that denied so many their economic security," he said.
CPFB opponents inside and outside of Congress say the agency, whose budget is not approved by Congress, will not be subject to legislative oversight and they have demanded changes in President Obama's financial regulatory overhaul law before they say they will allow a vote on a nominee to head the agency.
Senate Republicans last month filibustered Mr. Cordray's nomination, leaving him 7 shy of the 60 votes needed to get a final confirmation vote. Democrats and Republicans have increasingly turned to filibusters to block a president's nominees when they are in the majority.
Consumer and labor groups also hailed Mr. Obama's moves Wednesday.
Mr. Cordray's appointment "was long overdue and is essential to helping restore the frayed sense of confidence that Americans have in many financial institutions and consumer financial products," said Lisa Woll, head of the Forum for Sustainable and Responsible Investment.
James T. Callahan, general president of the International Union of Operating Engineers, said Republicans "have made a determined effort to cripple the NLRB and other government agencies by refusing to act on President Obama's nominees, no matter how qualified. Leaving the NLRB without a quorum would penalize both labor and employers."
But by abrogating decades of understanding of the recess appointment power Mr. Obama threatened to spark a full legislative war with Congress.
"Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress's role in providing a check on the excesses of the executive branch," Mr. McConnell said.
Part of the confusion is that in the Constitution the word "session" has different meanings. For example, each two-year Congress is divided into two sessions.
During Tuesday's pro forma meeting, the Senate officially gaveled out the first sessionn of the 112th Congress and gaveled in the second session.
And there is a precedent for making a recess appointment then. In 1903 President Theodore Roosevelt used the instant one session was gaveled out and another was gaveled in to make a series of appointments. That is known as an "inter-session" appointment.
But Mr. Obama did not follow that route, instead choosing to make what scholars call an "intra-session" appointment, where the Constitution is far more vague.
© Copyright 2012 The Washington Times, LLC. Click here for reprint permission.
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