Today, President Obama appointed Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) while the Senate was in pro forma session. The CFPB is an unaccountable bureaucratic nightmare that was birthed from the Dodd-Frank bill, and Republicans are rightfully criticizing this latest abuse of power by the Obama Administration.
The criticism of this appointment is warranted for several reasons:
First, today's actions expose a whopping pile of Democrat hypocrisy.During the previous administration, then-Senator Obama and his Democrat colleagues screamed bloody murder about any discussion of recess appointments by Bush.
The Senate Republican Communications Center helpfully sent out a list of quotes from Senate Democrats about recess appointments:
- Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05)
- A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he's damaged goods… somebody who couldn't get through a nomination in the Senate. And I think that that means that we will have less credibility...” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)
- ‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07)
- ‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don't let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)
- Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
- A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
- ‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he's going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)
- ‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor's recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05)
- Recess appointments an ‘abuse [of] the power of the presidency.’ “‘It’s sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,’ Kerry said in a statement ...” (“Recess Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The Washington Post, 4/5/07)
- “…bends the rules and circumvents the will of Congress.”(“President Sends Bolton to U.N.; Bypasses Senate,” The New York Times, 8/2/05)
- “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered…” (“Dem Baucus Joins GOP In Blasting Obama CMS Recess Appointment,” The Hill, 7/7/10)
Reading these quotes, you would think that recess appointments threaten the end of the world. What a difference a few years makes, hmmm?
Second, Cordray himself has some interesting views on the limit of congressional authority (and by "interesting," I mean radically liberal and completely out of the mainstream opinion of anyone who, say, has read the constitution before). Stephen Gutowski has a good post with the details here.
Third, and perhaps most importantly, the Senate is not actually in recess, so Obama's appointment of Cordray is an especially egregious abuse of power. (Most. Transparent. Adminstration. EVER!)
Phil Kerpen has written an excellent op-ed that describes why this appointment is so outrageous:
...Obama also believes he can decide for himself that the Senate is in recess when it is not, overturn at least a hundred years of precedent, and bypass the Constitution’s advice and consent requirement.
Moreover, the president now considers it a political virtue that he is doing precisely what he criticized George Bush for doing: “make laws as he is going along.” Obama now says: “I refuse to take 'No' for an answer… 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.”
If he were acting within the confines of the law and the Constitution, the argument might make sense. But Obama has now adopted a theory of executive power so expansive that a reporter at a recent press conference understandably asked whether the president believes we have a virtual monarchy, a president of unlimited powers subject only to periodic elections but not to the rule of law...
According to a 1993 brief from the Clinton Justice Department, Congress must remain adjourned for at least three days before the adjournment constitutes a “recess” for the purposes the recess appointment power.
The origin of this three day period is Article I, Section 5 of the Constitution, which states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”
In other words, the president can only recess appoint when the Senate has adjourned for more than three days, and the Senate cannot adjourn for more than three days without the consent of the House. Speaker John Boehner has properly withheld that consent to prevent Obama from installing radical appointees into key positions...
Read the rest here.
UPDATE: Obama is doubling-down on the unconstitutional chicanery,by adding a few non-recess appointments to the National Labor Relations Board.