A Recess Appointment for Warren?

Is President Obama poised to make a recess appointment for Elizabth Warren?

According to Bloomberg, President Obama may use a recess appointment to name Elizabeth Warren as head of the Consumer Financial Protection Bureau:

President Barack Obama may appoint Elizabeth Warren, the Harvard law professor who scolded U.S. banks while overseeing their bailout, as the interim head of the new Consumer Financial Protection Bureau as early as this week, according to a person familiar with the matter.

An appointment as interim head of the agency could allow Warren, 61, to bypass a confirmation battle in the Senate, where Republicans have raised objections to her possible nomination.

The selection may be made tomorrow or the following day, said the person, who requested anonymity. The final decision on temporarily installing Warren hasn’t yet been made, said another person familiar with the matter.

Not exactly a definitive report, so it perhaps ought to be taken with a grain of salt.

First, I have a practical question:  I believe that the Congress went back into session yesterday, and they have set a target date for recess of October 8th (see schedule here).  As such, we are roughly a month away from the next recess, so it would be odd to announce a recess appointment while Congress is in session, yes?

Second, the philosophical objection:  if Obama does pursue a recess appointment, I would find it to be a problematic move.  While it is true that Article II, Section 2 of the US Constitution allows for recess appointments, I consider them to be an anachronism from a bygone era where the Congress would disperse and be difficult to reassemble.  In those prior eras some type of mechanism was clearly needed to fill vacancies that occurred when Congress was not in town.

However, the President is not in a position wherein he has a vacancy that must be filled or vital work that will not get down if the appointment is not made.  No, this maneuver would solely to be to do an end-run around the Republicans in the Senate.  Perhaps a tactically smart thing to do, but like I said about President Bush’s uses of this power, it would be showing disdain for checks and balances (see, also, here).  This is especially noteworthy given that the President’s party controls the Congress at the moment with a healthy majority in the Senate.  I will grant that the situation also speaks to the growing obstructionism in the Senate, but it also speaks to the fact the perhaps Elizabeth Warren is not a politically viable appointment, and therefore it has to be abandoned.  If you can’t get a given appointee through the Senate when you have 59 votes, then you may have to move on.

Indeed, this all very much reminds me of a similar discussion over John Bolton to the UN:  a pick popular with parts of the base of the respective party, but that was not a politically popular pick and one which faced serious opposition in the Senate.  Some of my posts on that subject, which more or less mirrors my views on a Warren recess appointment, can be found here and here.  It worth noting as a matter of fact that Bush was facing a Democratic majority at the time.

See also:  Background on Recess Appointments.

FILED UNDER: US Politics, ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. john personna says:

    I don’t really see that Warren has any exposure in a confirmation battle.  Attacks on her have been true ad hominems, that is Warren is “bad” in some fuzzy and poorly documented way, and so she is wrong about consumer protections.  It is especially important in those ad hominem attacks never to explain to the reader what exactly are Warren’s consumer protection views, or why they would be harmful.
     
    As I understand it, Warren says that markets should be our first choice, but sometimes they need oversight.  Outlandish, eh?
     
    I almost want the filibuster battle because it would make the Republicans look so crazed … but then I remember that they sometimes do make the crazed thing work for them.

  2. […] From me @OTB:  A Recess Appointment for Warren? […]

  3. john personna says:

    From the WSJ:
     

    The President was asked whether he was worried about having any nomination of Warren blocked by Republicans in the Senate. Some Democrats had expressed concerns that Warren would face opposition because she has been perceived as being biased against the banks. “I am concerned about all Senate nominations,’’ Obama answered, adding that most of his nominations for government appointments have faced turbulence in the Senate. “They are just playing games,’’ he said of the Senate Republicans.

    http://blogs.wsj.com/deals/2010/09/10/whatever-happened-to-elizabeth-warren-and-the-consumer-protection-agency/
     
    That really seems odd.  I would not have thought that banks would have broad support with voters right now.  But then, maybe the average voter doesn’t know how many are missing TARP paybacks?
     
    http://feedproxy.google.com/~r/CalculatedRisk/~3/VHpSM0kd3uM/tarp-deadbeat-list-grows-to-more-than.html
     
    These guys are not showing that they’ve got it all together and that without government all would be fine.

  4. For whatever reason, Warren has been cast as some sort of bête noire by some sectors of the GOP worthy of a major fight.

  5. john personna says:

    I get that, but it seems the reason is that she actually thinks someone should look at how credit is presented to the consumer.
     
    If I’m remembering correctly she has said that government should block no credit, but just ensure that it is offered in clear terms.
     
    That is a really weird thing for the GOP to oppose, unless they think they can just brand it “socialism” or something.

  6. unless they think they can just brand it “socialism” or something.

    I think that this is exactly the case.

  7. Brett says:

    I don’t think this is a recess appointment per se. The enabling legislation for the agency allows an interim head to be appointed and serve indefinitely without Senate confirmation. This interim head will report to the Secretary of Treasury, until a permanent apointee is named. The interim appointment does not even require the Congress to be in recess. The NYT has a better description of the distinction here:

    http://www.nytimes.com/2010/09/14/business/14consumer.html?_r=1&dbk

  8. @Brett:  that certainly would make more sense if this is an immediate move given that Congress is in session.  I will give the links a look–thanks.

  9. Tano says:

    Steven,
     
    I think Brett is right. This is not a recess appointment. It is, as the story actually says, an interim appointment to do the work of setting up the agency, before the actual appointee takes over. There were stories about, in the past few months, that Obama might make this interim appointment, since it was felt by many that the interim leader would have a very strong influence on the future of the agency – would play a major role in shaping its identity, by appointing all of the first-generation leaders, defining the mission, and establishing precedents for actions. Thats why lots of people wanted Warren for this role, and saw it as even more important than whether she was the eventual Senate-confirmed leader.

  10. MSS says:

    Cool photo choice!! (Even more appropriate with the fog.)
    I don’t see why whether the president’s party has 51 or 59 seats, yet can’t get the nominee through, should make any difference. Indeed, the problem is that “advice and consent of the Senate” has become de-facto “advice and consent of three fifths of the Senate.”
    While I agree on the problematic nature of recess appointments, the bigger question is whether executive appointments really need to require super-majorities. I see no reason why they should, in a presidential democracy.
    As you well know, Steven, almost no other presidential democracy requires even majority approval by any part of the legislative branch for executive posts. Having so many appointments require legislative approval seems less a worthy extension of checks and balances than a violation of separation of powers, in my view.
    I don’t have any problem with cabinet appointments requiring confirmation by a MAJORITY (though I’d prefer it be a majority of the House), and I have long maintained that the US practice of placing many administrative and regulatory functions in the hands of independent commissions rather than under cabinet departments was something that other presidential democracies should emulate. But enough is enough. These various other executive posts could be presidential prerogatives.
    (By the way, I would apply none of the above logic to judicial appointments, which I have always believed should require either super-majorities, or there should be no executive initiative in appointments at all. Both are models that most other presidential democracies have emulated in recent times.)

  11. While I agree on the problematic nature of recess appointments, the bigger question is whether executive appointments really need to require super-majorities. I see no reason why they should, in a presidential democracy

    I concur, but figured I’d handle one gripe at a time.  I simply find the practice of using the recess appointment power as a means of avoiding political accountability to be problematic.

  12. steve says:

    Steven- There is no way to make the Senate accountable. I think it has gotten to the point where the Senate should be given 4-6 months to approve or deny all appointments, ie, they need to have a hearing and a vote. If they do not do that, it should become an appointment. That way, the Senate still has the opportunity to vote, just not obstruct.
     
    Steve

  13. MSS says:

    While I am not one who is particularly inclined to defend executive prerogative (regardless of party), I suppose the recess appointment is a useful strategic counterweight to an obstructionist Senate minority. In that sense, it actually is consistent with checks and balances.
     
    I’d rather see both the filibuster on executive appointments and the executive recourse to recess appointments be abolished. One could imagine this being a package deal of negotiated “bilateral disarmament.” Not that I expect that to happen, alas.

  14. MSS says:

    I meant to say “the filibuster on executive-BRANCH appointments” (i.e. for positions in the executive itself).
     
    As I alluded to in my first comment, I actually prefer super-majority confirmation of judges, and hence am willing to keep the filibuster option there–and only there.

  15. @MSS:

    It is a fair point.  I still look at it as taking a clause meant for one purpose and using it for another, and as an end-round at that.

    I do concur that the super-majority requirements in this context need to go away, however.

  16. Sam says:

    First good news in a while. I’m glad the right-wing attack machine couldn’t take down the best consumer advocate in the country. Obama tapping her is one of the first genuinely smart things he’s done…

  17. […] a follow-up to a post from the other day, and sure to cause a volcanic reaction amongst the voters,* the NYT reports:  Warren to […]