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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:
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.