Defying Senate GOP, Obama To Use Recess Appointment To Appoint Head Of CFPB

President Obama is set to announce that he will use the power granted him Article II, Section 2, Clause 3 of the Constitution to make a recess appointment to name the head of the Consumer Financial Protection Bureau:

President Obama will announce today that he will appoint Richard Cordray as head of the controversial Consumer Financial Protection Bureau during the Senate’s recess, the White House said.

The appointment comes to the dismay of Senate Republicans, who blocked Cordray’s nomination in order to weaken the bureau.

Speaking in a news conference after Cordray’s block Dec. 8, President Obama said he wouldn’t take any option off the table, but a recess appointment was not an option he favored.

“My hope and expectation is that the Republicans who block this nomination come to their senses,” Obama said at the news conference. “And I know that some of them have made an argument, we just want to sort of make modifications in the law. Well, they are free to introduce a bill and get that passed.”

But the Senate did not make any amendments to the power Cordray would have as head of the CFPB, focusing instead on year-end deals for the remainder of December. Without a leader, the CFPB has no jurisdiction over banking institutions, which include mortgage lenders.

The announcement will take place later today in Cleveland, where the President is scheduled to deliver an economic speech. It will be accompanied, no doubt, by the same kind of gnashing and wailing from the right that we saw the last time that the President used the recess appointment power. However, this is hardly a new thing for a President to do, and hardly limited to Democratic Presidents:

And while conservatives seem to be reacting quite strongly to this action, and to the President’s previous recess appointments last April, which one conservative blogger called an example of “Obama’s Thug-ocracy,” the truth is that recess appointments are fairly common. President Eisenhower, for example, utilized recess appointments to appoint three Supreme Court Justices — Earl Warren, William Brennan, and Potter Stewart. More recently, President Reagan made 243 recess appointments over eight years, President Bush (41) made 77 recess appointments over his one term, and President Bush (43) made 170 recess appointments in his eight years. However the second President Bush’s ability to make recess appointments was severely curtailed after 2006 when Harry Reid the devised the strategy of never adjourning the Senate.

One could also argue that Obama’s action is entirely justified given that the GOP’s block on Cordray was based not on any objection to him or his qualifications but on their effort to block the CFPB itself despite the fact that its creation has been approved by both Houses of Congress. So, expect the usual partisan outrage on this one  but remember that it’s total nonsense.

Update: John Elwood examines the legal issues involved here and Ed Morrissey talks about the political ramification:

[T]he lasting impact of this recess appointment will be (a) Republicans blocking even more Obama appointments, and (b) a Republican President ignoring a Democratic block on appointments regardless of the time that the Senate has been out of the chamber.  Expect the GOP to press a charge of Obama as an imperial President in the fall, too.

This is likely true, although the “Imperial President” argument is quite obviously absurd. This is a power granted to the President under the Constitution of the United States which has been exercised literally hundreds of times in the past by Presidents from both parties.

FILED UNDER: Barack Obama, Congress, Politicians, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    The Republican argument here isn’t that the president doesn’t have the right to appoint controversial nominees via the recess appointment but rather than there has been no recess.

  2. Fiona says:

    Good for Obama. It’s not like the Republicans haven’t been blocking tons of his appointees already (how many federal judge nominations are now being stalled?) So, now they’re going to block more? Big surprise.

  3. @James Joyner:

    The linked article from Volokh’s site is written by a guy who worked in the Bush White House who prepared a legal opinion that Harry Reid’s pro forma sessions didn’t obviate the Recess Appointment power, it’s an interesting argument.

    Also, FWIW, Teddy Roosevelt once made a Recess Appointment when the Senate went out of session for a single day.

  4. James Joyner says:

    @Doug Mataconis: It’s an interesting question and one the Supremes might well shy away from ruling on, calling it a political question. But it’s an obvious abuse of presidential power. Then again, I think the recess appointment generally is an abuse of power, since its intended purpose has long since been obviated by a more-or-less full time legislature.

  5. Commonist says:

    [T]he lasting impact of this recess appointment will be (a) Republicans blocking even more Obama appointments …

    Oops, that’s impossible.

  6. Rob in CT says:

    Good. Enough with this. The GOP doesn’t have objections to a particular nominee. They’ve flat-out admitted their goal is to stop *anyone* from leading the agency, because they hate the idea of the agency itself. Which Doug noted (bravo).

  7. Neil Hudelson says:

    ore recently, President Reagan made 243 recess appointments over eight years, President Bush (41) made 77 recess appointments over his one term, and President Bush (43) made 170 recess appointments in his eight years.

    To compare and contrast, Obama has made a full 28 recess appointments. This will be the first time (that I’m aware of) he’s made a recess appointment to bypass Congressional blockades.

    [I didn’t see Obama’s numbers in the article. My apologies if this information is redundant.]

  8. Hey Norm says:

    Republicans vowed to block all CFPB nominees leaving Obama no choice. Now they are p’oed because he called their bluff. Not the first time we’ve seen them pout like little babies…won’t be the last.

  9. Hey Norm says:

    I went and read the Morrisey piece…in spite of my feelings about logging onto hyper-partisan uber-right wing nut-case sites…Michelle Malkin…really??? Anyway…Morrisey ended the piece with:

    “…The only action that can be taken is to make sure that Obama pays a political price for them…”

    I think Morrisey misses the big picture…this is just the most recent example of Obama acting in the interest of the middle-class in spite of an obstructionist opposition. The more noise the Republicans make about this…the bigger the political win it will be for Obama. Don’t believe me? Watch his speech (taking place right now?) today in Ohio…a swing state. Coincidence??? And remember…the bases problem with Obama has never been that he is too confrontational…

  10. Norm,

    Malkin hasn’t been part of HA for years now

  11. Hey Norm says:

    Oh…well that changes everything….

  12. legion says:

    [T]he lasting impact of this recess appointment will be (a) Republicans blocking even more Obama appointments, and (b) a Republican President ignoring a Democratic block on appointments regardless of the time that the Senate has been out of the chamber. Expect the GOP to press a charge of Obama as an imperial President in the fall, too.

    And how is this even the slightest bit different from what would happen if the appointment hadn’t been made? Going to Ed Morrissey for insightful political analysis is like going to White Castle for diet soda.

  13. Tsar Nicholas says:

    My respect for Rambobama just went up several notches.

    The Senate technically is not in recess and even Bush didn’t attempt to make recess appointments after Harry Reid came up with the pro forma session strategy, despite the former’s very own counsel’s opinion that he still retained recess appointment powers. Obama’s got balls.

    On a larger point I’ve always felt the Senate principally was an advisory body when it came to nominations and appointments. The Framers could have said “consent” alone. They could have said “approval.” They could have said “agreement.” They didn’t. “Advice and consent….”

    Concentrated plenary powers in the chief executive with weak powers afforded to the legislature is the sine qua non of effective government in a republic. Especially when you factor in the dumbing down of our populace. Gridlock is the hobglobin of weak mindedness. Kudos to Obama for recognizing that reality. I won’t be voting for the man, for obvious reasons, but at least I can say with certainty that he’s not in the Jimmy Carter category of weakness and ineptitude.

  14. SKI says:

    @James Joyner:

    It’s an interesting question and one the Supremes might well shy away from ruling on, calling it a political question. But it’s an obvious abuse of presidential power. Then again, I think the recess appointment generally is an abuse of power, since its intended purpose has long since been obviated by a more-or-less full time legislature.

    Is it more or less an abuse than a minority of Senators being able to block appointments, not because they oppose the individual, but because they oppose the agency itself – but don’t have the votes to eliminate it? Checks and balances.

    If they wanted to block the recess appointment, they could have given the nominee an up or down vote and lived with the consequences.

  15. TheColourfield says:

    @James Joyner:

    It’s the logical response to severe abuse of senate power. They won’t confirm anyone for anything.

    The republicans are a pathetic joke and are completely uninterested in governing the country.

  16. Tano says:

    @James Joyner:

    But it’s an obvious abuse of presidential power. Then again, I think the recess appointment generally is an abuse of power,

    Perhaps. But then the petulant refusal of a minority in the Senate to allow dozens of appointees to get an up or down vote is also an abuse of power. So maybe you have to abuse a little power once in a while to thwart other abuses of power.

    Lets focus on the bottom line. The Congress passed a law setting up this agency in its present form. There seems to be insufficient support within the Congress to repeal that law, or to modify it. Thus, the agency exists, and the only question is whether it will have an effective competent leadership or not.

    Obama deserves great praise for thwarting the nihilist politicos and getting on with the business of governing.

  17. Hey Norm says:

    It appears that by appointing Corday today, as opposed to yesterday as expected, Obama has insured that he can serve for two years…not just one. Small wonder the Republicans are crying.

  18. Peterh says:

    I’m reminded of what Mantis said in a previous thread that’s equally applicable here…..

    mantis says:
    Tuesday, January 3, 2012 at 15:41
    The GOP’s Ridiculous ____________ Argument.
    Fill in the blank. Most every argument they make is ridiculous.

    F&%k ‘em

  19. David M says:

    Looks like Obama also used recess appointments for the NLRB vacancies as well, so it’s looking like he’s continuing the positive movements.

  20. Hey Norm says:

    The gift that keeps on giving…
    Obama is also making recess appointments to the NLRB…which currently lacks a quorum…rendering it inoperative.
    Reagan and both Bush’s also made recess appointments to the NLRB…I wonder if the Republicans will remember that when they start crying?

  21. The question isn’t whether recess appointments are proper, it’s whether these are proper recess appointments.

  22. Hey Norm says:

    @ Doug…
    The President is doing what he has to in order to govern.
    I’m sure if Congress wishes to join him in that task he will accomodate them.
    However to date they have been dis-interested…if even capable. If in the process of these recess appointments (far fewer than any of his predecessors) the stank of dysfunction rubs off on the Republicans…good. No one deserves it more.

  23. mantis says:

    The Republican argument here isn’t that the president doesn’t have the right to appoint controversial nominees via the recess appointment but rather than there has been no recess.

    There has to be a recess between congresses. Just because McConnell wants the recess to be at least ten days long doesn’t mean it needs to be. Don’t go by my word. Read the Constitution (Article II, Section 2, if you are wondering):

    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.

  24. Dazedandconfused says:

    I wouldn’t be surprised if the GOP doesn’t make a big deal out of this right now. It would be injected into the New Hampshire debates. I don’t think they want the fight against consumer protections to be front and center.

  25. Hey Norm says:

    @ Mantis…as I understand it…
    The Senate was in “pro forma” session…which basically means they pretend to be in session in order to prevent recess appointments. Traditionally Presidents yield to this tactic….but at the same time it is tradition for the opposition party to actually participate in governance…and as far as I know there is nothing that says the president has to yield to the pretend sessions. Bottom-line…the “pro forma” sessions are absolutely meaningless and the President retains his Constitutional right to recess appoint up until the real session begins.

  26. Gustopher says:

    Good for Obama. I’m sick of the Republican’s Block Everything strategy, the Senate needs to do it’s job, and if it can’t or won’t, the President needs to push on.

    And while the Republicans will be offended and they will complain, this is just the Outrage du Jour — if it wasn’t this, it would be something else real or imagined (the lunches at the kids’ school, taking away everyone’s guns, whatever).

  27. mantis says:

    The Senate was in “pro forma” session…which basically means they pretend to be in session in order to prevent recess appointments.

    Yeah, but you have to break between congresses. There must be a break between the 111th and the 112th. I was assuming that was the timing, but now I’m not quite sure.

  28. Hey Norm says:

    There was a break…and a new “pro-forma” session began today…but apparently Obama ignored it.

  29. David M says:

    @mantis: Obama could have used the break between the two, but instead took the position that the Senate really isn’t in session so he could make the appointments.

  30. WJW says:

    Quoting Harry Reid in 2008. Senator Obama (at the time) agreed with Reid.

    “I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made,” he said on the Senate floor in 2008, as Democrats blocked a potential recess appointment of Steven Bradbury to be the assistant attorney general for the Justice Department’s Office of Legal Counsel in the Bush administration.

    So, either it is wrong for Obama to do this, or it was OK for Bush to do it. Reid and all on the far left can not have it both ways.

    For all of you that agree with what Obama is doing, just remember this when we have a Republican president (it will happen again at some point) and, of course, you will agree when he/she makes the recess appointment when the Senate NOT in recess.

  31. An Interested Party says:

    So, either it is wrong for Obama to do this, or it was OK for Bush to do it. Reid and all on the far left can not have it both ways.

    That applies to those on the right too, they too can’t have it both ways…those who are whining now about the President should have been complaining then about Bush, if they want to be consistent…