Obama Administration: 'Screw the Constitution ... I refuse to take no for an answer' :: Political News and commentaries

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January 4, 2012

Obama Administration: 'Screw the Constitution ... I refuse to take no for an answer'

Topics: Political News and commentaries

Yesterday we learned that Obama intended to "recess appoint" Dodd-Frank czar Richard Cordray to head the Consumer Financial Protection Bureau. This, despite the fact that the Senate hasn't actually been in recess. The Senate is now in "pro forma" session, in which a handful of senators meet in the Senate every three days, as part of the agreement with the Republican-controlled House to adjourn Congress. The Democrat-controlled House and Senate did the very same thing during the last year of the George W. Bush administration.

Yet now the Obama says he "refuses to take no for an answer" and his administration has announced his rationale for his unprecedented illegal power grab (emphasis mine):

Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called "pro forma" sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President's constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham "pro forma" sessions to prevent the President from exercising a constitutional power.

Because of the President's leadership and decisive action, the American people will have a consumer watchdog fighting tooth and nail on their behalf. The President knows this is a make or break moment for the middle class and he'll continue to build an economy that's based on the values of fairness and shared responsibility. Today's announcement is a critical piece to strengthen the economy and restore the economic security for the middle class and those trying to reach it. Mr. Cordray is the right man for the job and we're pleased he's finally in place to continue his important work.

Note that the relevant words of Article II, Section II of the Constitution are:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

They do not contain the word "effectively"!

Furthermore, the Congressional Research Service has an analysis of the recess appointment power and it doesn't support Obama's claim (pdf - emphasis mine):

The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days.10 In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This "Adjournments Clause" provides that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ...."11 Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated:
If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ...It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. ...

Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.12

In other words, Obama's action is clearly a blatant violation of the Constitution and his only purpose can be to instigate a fight with congressional Republicans and energize his liberal base. In the continuance of his non-stop, 24/7/365 campaign mode, having dismally failed to fix America's economic woes will drastically increased our national debt, he's determined to make Congressional Republicans his opponent in 2012. And he's perfectly willing to continue violating the Constitution whenever and as often as he pleases if he believes it helps him politically. And even worse, as John Berlau explains at Openmarket - the appointment of Cordray is doubly offensive to the Constitution, snubbing Congress and usurping it in one stroke.

As for why Senate Minority Leader Mitch McConnell, R-Ky., opposes Cordray nomination - it's because the CFPB "is subject to none of the checks that independent agencies normally operate under" ... and that Obama is "fundamentally endanger[ing] the Congress's role in providing a check on the excesses of the executive branch" by using a recess appointment that breaks with precedent and a policy laid out by his own Department of Justice (DOJ) that says the Senate has not been adjourned for a long enough time for a recess appointment to take place.

And as Mark Calabria explains at Cato, not only was the creation of the CFPB unwise, and the appointment of Cordray to head it unconstitutional, but it looks like Cordray actually performing his duties would be unlawful, thanks to some unusual language in Dodd-Frank (emphasis added):

""More importantly the "recess" appointment of Cordray doesn't solve the President's problem. The Dodd-Frank Act is very clear, even a law professor can probably under this section, that authorities under the Act remain with the Treasury Secretary until the Director is "confirmed by the Senate". A recess appointment is not a Senate confirmation. Now don't ask me why Dodd and Frank included such unusual language, they could have just given the Bureau the new authorities, but they didn't. So even with this appointment, the CFPB won't be able to go after all those non-banks, like the pay-day lenders and check-cashiers that caused the financial crisis (oh wait, those industries didn't have anything to do with the crisis).""

Calabria goes on to point out that the real harm in Obama's "recess appointment" is that he has decided to take a gamble with the Constitution and risk the further erosion of the Senate's advise and consent powers, solely to have another campaign issue so he can try to paint Republicans as captive to Wall Street - all despite the fact the new agency exempts Wall Street (who will continue under the ever effective oversight of the SEC).

Breaking: In another purely political move, Obama is going to also make recess appointments to instal his picks to the NLRB