Why The GOP Is Likely To Lose The Political Fight Over The Cordray Appointment

The GOP is at a distinct disadvantage in the political fight over President Obama's Recess Appointment of Richard Cordray to head the CFPB.

Alana Goodman passes on this excerpt from Charles Krauthammer last night on FNC:

It’s cynical and it works. Look, [opponents like me are] talking about process and procedure and what would look like arcana. And [the president is] arguing “I am protecting the little guy against the Republicans, who [use] constitutional niceties to protect the rich and the 1 percent, the ones who have robbed you.” It’s a good argument [politically]. He wins it. But I think it’s disgraceful.

Yep, that’s exactly right. First of all, there’s the fact that arguments over process are generally only of interest inside the Beltway, and even then only to people heavily invested in a particular policy. Republicans, and the conservative media, are trying to up the ante regarding these recess appointments by using inflammatory rhetoric to describe what happened here — the number of uses of words like “tyrannical” that I’ve seen in the last 24 hours is so high my eyes just tend to skip over the word at this point. As I noted yesterday, though, the reality is that the law is far from clear. There’s no doubt that what the Administration has done here is unprecedented, but that doesn’t mean that it’s unconstitutional. There are good arguments on both sides, although I think that the argument that these pro forma Congressional sessions are nothing more than a sham is rather persuasive. In any case, though, even if you agree with the argument that the appointment was Constitutionally inappropriate, calling it “tyrannical” is ridiculous and likely to make the eyes of the average voter glaze over.

Obama, on the other hand, framed Cordray’s appointment based on the merits of the policy as he sees them, and on economic populism. Consider this excerpt from the speech he gave in Shaker Heights, Ohio yesterday:

THE PRESIDENT:  And to help us do that, I’m joined by somebody you might recognize — Richard Cordray.  (Applause.)  Son of Ohio; a good, good man.  (Applause.)  Today I’m appointing Richard as America’s consumer watchdog.  (Applause.)  And that means he is going to be in charge of one thing:  looking out for the best interests of American consumers.  Looking out for you.  (Applause.)

His job will be to protect families like yours from the abuses of the financial industry.  His job will be to make sure that you’ve got all the information you need to make important financial decisions.  Right away, he’ll start working to make sure millions of Americans are treated fairly by mortgage brokers and payday lenders and debt collectors.  In fact, just this week, his agency is opening up a simple 1-800 number that you can call to make sure you’re getting a fair deal on your mortgage, and hold banks and brokers accountable if you’re not.  (Applause.)

Now, I nominated Richard for this job last summer, so you may be wondering why am I appointing him today.  It would be a good question.  (Laughter.)  For almost half a year, Republicans in the Senate have blocked Richard’s confirmation.


THE PRESIDENT:  They refused to even give Richard and up or down vote.  Now, this is not because Richard is not qualified.  There’s no question that Richard is the right person for the job. He’s got the support of Democrats and Republicans around the country.  A majority of attorney generals — Richard is a former attorney general — a majority of attorney generals from both parties across the country have called for Richard to be confirmed.  Your local members of Congress who are here today — they support him.  He has the support of a majority in the Senate.  Everyone agrees Richard is more than qualified.

So what’s the problem, you might ask.  The only reason Republicans in the Senate have blocked Richard is because they don’t agree with the law that set up a consumer watchdog in the first place.  They want to weaken the law.  They want to water it down.  And by the way, a lot of folks in the financial industry have poured millions of dollars to try to water it down.

That makes no sense.  Does anybody think that the reason that we got in such a financial mess, the worst financial crisis since the Great Depression, the worst economic crisis in a generation — that the reason was because of too much oversight of the financial industry?


THE PRESIDENT:  Of course not.  We shouldn’t be weakening oversight.  We shouldn’t be weakening accountability.  We should be strengthening it — especially when it comes to looking out for families like yours.  (Applause.)

Whether you agree with the President or not here, it’s not hard to see who has the better argument here from a political point of view. Krauthammer certainly does, and he grudgingly admits in his comments above that the President is going to win this political battle, which is really what all of this was about to begin with. It’s no mistake that this announcement was made on the day after the Iowa Caucuses (although the timing did apparently also have to do with the mechanics of how long Cordray would be able to serve without having to be confirmed by the Senate). This was the opening shot of the New Year in the Presidential race, and we can expect a lot more of it.

Alana Goodman comments:

Republicans are on the right side of this issue, but they may have a hard time winning over the general public. Typically, you oppose appointments because of problems with the appointees, but here the GOP is opposing them because of problems with the agencies themselves. They don’t want the agencies to be able to operate, which sounds obstructionist on its face, and it doesn’t help that these agencies are ostensibly focused on issues like labor and consumer protection. This situation is tailor-made for Obama’s reelection strategy.

Exactly. The GOP has a good argument, I think, when it points out the fact that the CFPB will operate with less Congressional oversight than other Executive agencies, even such ostensibly independent regulatory bodies as the SEC and the CFTC. The fact that the new agency’s budget will come from a funding source not controlled by Congress further limits Congressional oversight abilities. These are important concerns that need to be addressed, but blocking the appointment of an otherwise qualified nominee to head the agency is not the way to do it. It plays into the obstructionist meme, and it unnecessarily hands an issue to the President that resounds very well with the public. There are ways to address revisions to the law in the future, and that should be done, but the GOP miscalculated here and they’re likely going to lose this battle if they press the point too far.

FILED UNDER: Campaign 2012, Congress, US Politics, , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Rob in CT says:


    They don’t want the agencies to be able to operate, which sounds obstructionist on its face

    Because it IS obstructionist. Jeebus.

    I’d rather it hadn’t come to this, really. But it’s where we are.

  2. @Rob in CT:

    As I said, I think you can make legitimate arguments about the degree of Congressional oversight that the CFPB is subject to, and I’d favor Congress at least holding hearings and considering that. However, I disagree with the tactic of blocking this appointment because you don’t like legislation that has been law for two years and I think it’s a political mistake.

  3. Hey Norm says:

    The GOP is right…there is not enough oversight. It really is too bad they failed to do their job in the drafting of the legislation. Governing is hard work. They should try it some time.
    In the long-run I hope this will lead to reforms in the confirmation process, which is clearly broken.
    In the short-run it is a political bludgeon aimed directly at the heads of a Congress and Romney. Who are you more concerned about? Wall Street or the people?

  4. James Joyner says:

    @Doug Mataconis: Agree. This is a bizarre situation. The Congress is refusing to do its Constitutionally-mandated job on an ever-increasing basis. By “the Congress,” at least for the moment, I mean “Congressional Republicans.” An exasperated president is therefore using Constitutionally dubious, if not unconstitutional, means of doing his job.

    I don’t like it one bit. But it’s where we are.

  5. @James Joyner:

    The whole thing is a sign that the system is broken at some level. The GOP position on the Cordary nomination is like if some Senator said “I don’t like the 9th Circuit Court of Appeals therefore I will block all appointments for any judgeship in the 9th Circuit”

    It used to be an accepted rule that if a nominee was qualified for the position they were appointed for, they’d get approved. Yes, sometimes they’d get a hard committee grilling but that’s part of politics. I’m not sure where it broke down. Well, I have a good idea of where it broke down for judicial appointments, but now the logjam has spread to agency appointments.

    The NLRB appointments aren’t getting as much attention as Cordray but that’s another example. Because of the blocked appointments and the end of terms of previous commissioners, the NRLB started 2012 without a quorum, meaning they couldn’t do any business at all. Nuts.

  6. Shirt says:

    And if Obama failed to get that agency started the GOP is much to urbane and sensitive to bring that up as an issue durring the election, eh?

    Personally, I think he should call congress back into session and keep it in session until 95% of all nominees who’ve waited for 100 days or more are voted on.

  7. David M says:

    It’s also worthwhile point out that just a week ago it was the GOP’s position that the Obama Administration needed to delay the request to increase the debt limit because Congress was on recess and wouldn’t be back for the meaningless disapproval vote before the 15 days were up. Now isn’t exactly a binding declaration that they are in recess, but it definitely supports the position that the pro-forma sessions are a sham

  8. Gromitt Gunn says:

    The problem with being a Party of “No” is that when you categorically refuse to sit down at the table when legislation is being drafted, you don’t get any say in what the final product looks like. Complaining after the fact that the executive branch is doing what you’ve forced it to do in order to follow the law your branch passed only feeds into the obstructionist theme. Having “had we bothered to participate in the legislative planning process, we could have introduced more oversight into an agency that was going to be set up regardless of whether or not we sat down at the table, but we didn’t feel like it, and now we don’t like the amount of oversight in the bill we refused to help draft, so we’re not going to allow the agency to have a head in spite of our bodies’ legislation mandating its existence” as your reason for being obstructionist just makes you look like a bunch of clueless monkeys with no serious interest in government or governance. And, thus, you get Congressional Republicans being taken as seriously as your local zoos simian exhibit.

  9. rudderpedals says:

    @Doug Mataconis: I think it broke down around the time teledoctor Sen Frist invoked the Nuclear Option and 11 gangsters came up with a deal to alllow up or down votes on acceptable nominees, a deal since broken.

  10. David M says:

    It also appears that Obama limited his recess appointments to situations where departments / agencies couldn’t function and the GOP was filibustering the actual position rather than specific nominees. This is a much different situation than if he had decided to make recess appointments to several dozen or more nominees, as then the GOP could at least try and argue they were opposing a radical nominee rather than all nominees for the position (CFPB & NLRB).

  11. Eric says:

    @Doug Mataconis:

    I have to agree with you on the basis of how Republicans have screwed up the strategy of trying to weaken the CFPB. They look like the bad guys based on how they keep trying to find ways to not have the agency operate fully. They are portrayed (at least through my eyes) as being a bit of sore losers and they are just messing up the championship ceremony.

    This strategy just plays to Obama’s favor, as you have argued, just because of the fact that all Obama has to say is “they refused to even give Richard and up or down vote. Now, this is not because Richard is not qualified…[but the] only reason Republicans in the Senate have blocked Richard is because they don’t agree with the law that set up a consumer watchdog in the first place,” and he’ll win the argument. No one wants to be called a sore loser.

    @James Joyner:

    The Congress is refusing to do its Constitutionally-mandated job on an ever-increasing basis. By “the Congress,” at least for the moment, I mean “Congressional Republicans.” An exasperated president is therefore using Constitutionally dubious, if not unconstitutional, means of doing his job.

    Totally agree.

  12. Rick DeMent says:

    It seems to me that the GOP has been on the other side of this equation for the last three years. They seemed to be OK with using the filibuster to a degree never before imagined for the express purpose of denying a majority vote on just about everything in the senate. The reason they got away with it is the same reason Krauthammer cited … it’s all inside football and no one really cares. People just wrote it all off to “congress” not understanding who was gumming up the process with unprecedented use of the filibuster. I mean how do the Republicans imagine they are going to be able to get anything done now that the new normal is 60 votes in the senate? They will be forced to unilaterally do away with the filibuster. Worse yet what if Obama gets a second term and the Dems decide they have had enough and do away with it themselves? It’s hard to blame them, but all we are talking about is getting votes to the floor for crying out loud.

  13. Tano says:

    There’s no doubt that what the Administration has done here is unprecedented,

    In what sense is it unprecedented Doug?

    From the Congressional Research Service: Recess Appointments: Frequently Asked
    Questions – LINK

    “When the first session of the 58th Congress ended, at noon on
    December 7, 1903, and the second session began soon thereafter, President Theodore Roosevelt made over 160 recess appointments—mostly of military officers. President Roosevelt treated the period between these sessions as a “constructive recess.”

    I.e.. a “recess” lasting mere minutes.
    Maybe you meant “unprecedented” in some other way?/

  14. Tano,

    The Roosevelt situation, while similar, is factually different given the pro forma sessions of the Senate that have been taking place every 3 days. Hence, my use of the word unprecedented.

  15. anjin-san says:

    I think Obama has finally lost patience with Republicans on the hill and the gloves are off. This is the second time he has slapped them around in the last few weeks, which does not bode well for the GOP heading into a Presidential election.

  16. Ron Beasley says:

    The Republicans have done nothing but play politics for the last four years and said that was what they were going to do four years ago. Now they have the nerve to complain that Obama is playing politics – of course he is but the Republicans have no business being critical. Advise and consent is a really good idea but is does carry some responsibility and the Republicans have been irresponsible.

  17. Tano says:

    @Doug Mataconis:

    The Roosevelt situation, while similar, is factually different given the pro forma sessions of the Senate that have been taking place every 3 days.

    Huh? What, pray tell, does that mean?

    TR made appointments during a “recess” lasting mere minutes. Reagan recess-apponted someone on the same day that the Senate went into recess one year (see footnotes in the above link). Other presidents have made appointments during 3-day recesses and up.

    The current Congress is making sham pro-forma sessions, without any quorum present or even possible, with explicit directions in the resolution that no work be done – and doing so every three days or so.

    What Obama is doing is not in any way unprecedented on any relevant factor. The pro forma nature of the sessions make Obama’s action more legitimate, if anything. TR made his appointments inbetween real sessions in which real work was being done.

  18. DRF says:

    Krauthammer thinks what Obama did is “disgraceful”, but has not a word to say about the REpublicans’ unprecedented obstruction of legal agencies by refusing to allow them to be staffed. The disgraceful ones here are the Republicans and their enablers such as Krauthammer.

  19. superdestroyer says:

    The Democrats are just signaling that they believe that the collapse of the Republican Party will be permanent and they do not have to worry about another Republican President.

    The Democrats are also sending a message that the rules do not matter. The Democrats have interpret any rule to mean whatever they want it to mean.

    As the U.S. becomes a one party state, there will many political maneuvers meant to hide responsibility for policy or governance and to enhance the power of political clouts who will be the new power brokers in the U.S.

  20. Simon says:

    DRF, that’s the line that Democrats are using, but it doesn’t make a lot of sense. I don’t see anything fundamentally wrong with refusing to confirm nominees to a position that one believes to have been misbegotten. The Senate is supposed to determine, at some level or another, with one degree of deference or another, whether individuals are a good fit for the office to which they’re nominated. Well, if you happen to believe that the office itself is a problem the answer to the question “is this nominee a good fit for this office” is “no,” because no one can be a good fit for a misshapen office. If the argument is that the Senate has the duty to confirm nominees for officers authorized by statute, I don’t understand why the same argument couldn’t be made for money: “Congress has a duty to appropriate money for any executive activity authorized by statute.” And then whither the Congressional “power of the purse”?

  21. Ron Beasley says:

    Obama has won this one. I really doubt this will be taken to court because the Republicans know they will lose. The conservative members of the SCOTUS made it clear during the Bush administration they are in favor of an imperial presidency. To go against Obama at this point would limit future Republican presidents. Bottom line – Obama was playing chess while the Republicans were playing checkers.

  22. Simon says:

    Ron, that’s the liberal line, but it’s not actually true. The more conservative members of the SCOTUS have made it clear all along that they are in favor of a more expansive vision of Presidential authority than the more liberal Justices; that by no means means unqualified Presidential authority. No one with any familiarity with the court’s cases would make the claim that they favor unbridled Presidential authority; look at Medellin, for instance.

  23. ponce says:

    The Democrats are just signaling that they believe that the collapse of the Republican Party…

    The Republicans will always have the support of the Confederate states that manage to hang on to a white majority.

    And they’ll always have the support of the land stealing religious fanatics of the Israelis fringe right


  24. michael reynolds says:

    Is anyone still listening to Republicans? On anything?

  25. superdestroyer says:


    As the Democrats flood the U.S. with third world immigrants, there is no state that the Democrats cannot flip to their control. California is the model that the Democrats will follow in the future. The Democrats will just elected themselves a new population.

    Also, Jews are some of the most loyal and most powerful Democrats. Do you really think that the Obama Administration will ever go against them?

  26. Rick DeMent says:


    I don’t see anything fundamentally wrong with refusing to confirm nominees to a position that one believes to have been misbegotten.

    Unless it’s Robert Bork, then it’s OK to go batsh_t insane over the notion that they didn’t confirm someone who is batsh_t insane (ok a little hyperbole there in the insane but this is the internet and I have to keep the partisan rancor up to an acceptable level).

    Well, if you happen to believe that the office itself is a problem the answer to the question “is this nominee a good fit for this office” is “no,” because no one can be a good fit for a misshapen office.

    If you really believe this then representative democracy has no meaning. The office was created by a legitimate process of government by a duly elected majority (and a super majority in the Senate at that). The idea that a minority can nullify a law in this way is about an anti-democratic as you can get. I mean i was opposed to the authorization of force that let bush start a war in Iraq, but the idea of democrats using procedural gimmicks to de-fund the war was ridiculous for all kinds of important reasons, at some point you have to say, we tried to stop it, we lost now we have to make the best of it or government can simply not function for any of us.

  27. WJW says:

    Most of the commenters are in favor of what Obama did. I am curious, will you all be in ok when a Republican President makes recess appointments when the Senate is in session?

  28. Rob in CT says:


    If the Dems are using the current BS “in session” trick the GOP is using? Yes.

    Context is important, WJW.

  29. Simon says:

    Rick, I clicked “helpful” on your post because I think it’s helpful (=moves the debate along), but I want to be clear that I don’t actually agree with it. the Bork comparison is inapt because the Democrats weren’t objecting to the existence of the Supreme Court or the ninth seat on it, they were objecting to Bork. If you want a viable SCOTUS analogy, we could fictionalize FDR’s court packing plan, under which the President gained the power to appoint an additional Justice for every sitting member over the age of 70 years and 6 months. Suppose the bill had passed and a disgusted electorate had tossed the Senate to the GOP while FDR narrowly hung on. A week after the new Congress takes its seat, a justice turns seventy years, six months, and one day, whereupon FDR duly sends a nominee to the newly Republican Senate. The Senate can’t repeal the packing plan on its own, but it can still register its rejection of the plan by refusing to confirm any nominee. It’s obviously Constitutional, but would you argue that it’s bad form?

    Here’s another question. Suppose the scenario just mentioned was reversed: In a vote-stacking effort, a Republican Congress adds a tenth seat to the Supreme Court, and the Republican President tries to fill it, but Congress dithers on the nominee and a disgusted electorate tosses the President out of office à la 1968. The incoming Democratic President says “I believe that the attempt to pack the court was a horrible error, I encourage Congress to get rid of the extra seat, and in the meantime I refuse to nominate anyone to the position.” Is the President doing something wrong?

    As to your second point, I don’t think you’re meeting my point about the power of the purse (the war context you mention in your reply is peculiar). If you’re saying that Congress has an obligation to confirm someone to positions created “by a legitimate process of government by a duly elected majority,” must you not also take the symmetrical position that Congress has an obligation to appropriate money to fund activities created “by a legitimate process of government by a duly elected majority”? And does the absurdity of the latter position not suggest the absurdity of the former?

    (As an aside, I reject out of hand your point about democracy because we aren’t one and the Senate is—and ought to be—the least democratic cog in the government machine.)

  30. Rob in CT says:

    @Rob in CT:

    I should add that for me it’s not just the “pro-forma” tactic. It’s the obstruction. The GOP does not object to the specific nominee. They object to the agency itself, and obstructed specifically to prevent the agency from doing anything. They do not have the votes to repeal the law that created the CFPB, so they’ll just stonewall instead. With a minority.

    Further, Obama put up with this for some time. As you may recall, there was originally a different nominee for the post – Elizabeth Warren. He switched to Cordray (probably to highlight the fact that it wasn’t about Warren, but rather the position itself, plus it freed Warren up to go after the MA senate seat). The clock has been ticking on this for quite some time.

    What is he supposed to do, by the way? Go to the Senate minority leader, hat in hand, and offer concessions? What would the GOP accept? I strongly suspect the “oversight” thing is bullshit. They object to the agency in its entirety, and offering to address their professed oversight demands is a fool’s game. Lucy would pull away the football yet again.

    No. Enough.

  31. Rob in CT says:


    One problem with your analogy: you keep talking about the electorate throwing the Senate to the GOP.

    But the Dems still have a majority in the Senate.

  32. Simon says:

    Rob, I don’t think that undermines the point I’m making, but it’s a great observation. How would the minority be keeping the Senate in session? Aren’t the people who are convening the Senate for these game-playing pro forma sessions Democrats?

  33. OzarkHillbilly says:


    I am curious about this too… But I would bet this is being done by the House majority.

  34. Rob in CT says:

    Good question. Honest answer: I don’t know. It doesn’t make sense to me that the Dems would be the ones calling pro forma sessions that allow the GOP to continue to obstruct these appointments, considering that if such were the case, all they would have to do would be to stop so the Senate was in recess and then Obama could make these appointments without the “unconstitutional!” complaints.

  35. mattb says:

    @Rob in CT & @Simon:
    Actually, based on my understanding, it may be a joint House/Senate Republican effort:

    The Constitution requires that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives has not given that consent and has been holding pro forma sessions every three days, forcing the Senate to do likewise.


  36. Simon says:

    Rob, I agree, but who else could be calling pro forma sessions?

    OzarkHillbilly, how would the House majority gavel the Senate into session? I assume you have I.5.4 in mind, but that doesn’t work for a few reasons. First, simply saying that House and Senate must both consent to adjournments doesn’t eo ipso bring the Senate into session. Second, I don’t agree that “recess” and “adjournment” are synonmyms, and I.5.4 covers only adjournment and applies only during the session of Congress, which strikes me as underscoring the adjournment/recess distinction. Third, if the House and the Senate disagree on the time of adjournment—which must be the case if “this is being done by the House majority” over the opposition of the Senate—the President has the authority to adjourn Congress. (That point also suggests the unlikelihood of the President benig able to use the recess appointment power during an adjournment of the Senate.) And fourth, I’ve seen no evidence that the House is preventing the Senate from adjourning—have you?

  37. Simon says:

    Matt, sorry, I didn’t see your post before hitting “post.” With all due respect to Gordon, that’s an assertion not evidence. Where in the record is the House’s refusal of consent to adjourn? Where in the record is the Senate’s request?

  38. mattb says:

    @Simon try google… From the Washington Examiner (emphasis mine):

    The Constitution says the Senate cannot recess for more than three days without the House’s permission. The House has not granted permission, and as a result both houses have been holding pro forma sessions out of constitutional necessity.
    Yet in this particular case, in which the House has not consented to a Senate recess, the pro forma session does not seem to be the issue. The Constitution is the issue. Without the consent of the House to adjourn for more than three days, the Senate is in session, whether it wants to be or not.


    And note that both Commentary and the Examiner are both conservative leaning publications. So unless you want to go to the extreme of “I won’t believe it until I can stick my fingers in the wound… er I mean read the request from Reid” I think it’s safe to say that this is a joint Republican congressional effort to keep both houses in session through pro forma meetings.

  39. Simon says:

    Matt, again, that’s an assertion not evidence—there’s no link to any primary source showing that the Senate has requested a recess or that the House has rejected it. (Unless the House has asked the Senate for a recess or vice versa, the fact that both have met pro forma shows nothing). But let’s set that aside for a moment and take the WE piece on the merits. “Without the consent of the House to adjourn for more than three days,” it says, “the Senate is in session, whether it wants to be or not.” And that’s really the point here: the Senate is in session.

  40. Simon says:

    As to “I won’t believe it until I can stick my fingers in the wound”—”In God We Trust. All others pay cash.”

  41. Dexter says:

    Why do we need the CFPB anyway? Just another agency with no controls on their power to over regulate businesses, leading to worker layoffs and higher prices for consumers. We already have the CPA. Why do we need another agency?

  42. mattb says:

    Ok… just to prove how stupid your “show me the evidence, because I won’t believe anyone” point is @Simon … how about two press releases for SENATOR DAVID VITTER praising John Boehner for not allow the Senate to go into recess in order to block the possibility of any interim appointments:


    Here’s more on the house decision (from December) to remain in session to block the recess appointments:

    Let me guess, you’re also a Climate Change denier skeptic based on the “lack of evidence too… right?

  43. David M says:

    The House is preventing the Senate from taking a recess of longer than 3 days, there isn’t any disagreement about that. Congress has been in recess for several weeks, the House has forced the pro-forma sessions to try break up the longer recess into many shorter ones.

    The disagreement is whether a 3 day recess is long enough for a presidential recess appointment. The 3 day length was by tradition only, there was absolutely nothing legally binding about it. Don’t expect the GOP to be honest about the fact that this disagreement is about the length of time rather than if they were at recess at all.

  44. Simon says:

    Matt, if you read the Vitter press release to which you link it says that he “sent a letter to Speaker of the House John Boehner asking him to continue not to pass any Senate adjournment resolution in order to stop controversial recess appointments by the Obama administration.” That phrasing seems to exclude the possibility that the Senate had already sent such a resolution (otherwise it would be “not to pass THE Senate adjournment resolution”). What’s more, if you look at the Senate’s votes page for this session, you will find no vote in which the Senate approved a resolution to adjourn, whereas if you look at the Senate’s votes page for previous sessions, you’ll routinely find such votes. If the Senate didn’t ask the House to adjourn, how can the House be said to be keeping the Senate in session?

    That brings us to your WSJ link, and I think you’ll agree that the most interesting observation therein is the same one that I mentioned above (replying to OzarkHillbilly): If the House and the Senate disagree on the time of adjournment—which must be the case if “this is being done by the House majority” over the opposition of the Senate—the President has the authority to adjourn Congress. So why hasn’t he used it? If the House wanted to keep the Senate in session, it could do so only with the complicity of the Senate majority and the President.

  45. Simon says:

    No, David, the House is not preventing the Senate from taking a recess—the Senate has not asked for a recess. And if it had, the House and Senate would then be in disagreement as to adjournment, which authorizes the President to adjourn Congress.

  46. David M says:

    This illustrates a good point. It’s obvious Congress is not in Washington and is not doing any work, so it’s pretty easy to see they are actually in recess. The pro-forma sessions are a sham, so recess appointments are appropriate. This is a simple and winning political argument and the GOP are welcome to take the position there should be more ways to get nothing done in Washington, but no one that isn’t already voting GOP is going to buy it.

  47. Socrates says:

    Simon is wrong. The CFPB was created legislatively, in the usual way. If Republicans want to do something about it, they should be required to make changes, or get rid of the CFPB, in the usual way: write a bill and pass it. That would be in keeping with American Democracy. What they are doing now is outside of the democratic process. THIS is what is disgraceful (I bet even Krauthammer doesn’t believe his own bullshit.)

    Dexter is wrong. Whether we need the CFPB is irrelevant to the issue of the recess appointment; the CFPB was created with an act of Congress. And the solution is the same: if you think we don’t need it, mount political opposition, write a bill, and pass it.

    You know, Democracy. You’ve heard of this concept, yes?

  48. Rick DeMent says:


    the Bork comparison is inapt because the Democrats weren’t objecting to the existence of the Supreme Court or the ninth seat on it, they were objecting to Bork.

    I get what your saying but the GOP seems to be arguing that it’s OK to use procedural tricks to stop the implementation of a law that got 60 votes in the Senate. I guess my point is that if you feel a person is unqualified to hold the office (as the Dems clearly felt about Bork) then you should oppose him or her, I mean Harriett Miers was opposed buy both parties, not because they wanted to stop the supreme court form doing it’s work but because they thought she was a bad choice. If the Dems had held up every freaking nominee Bush trotted out out there to keep conservatives off the bench then that would seem much more outrageous then simply picking off individuals because they think they are too extreme.

    What the GOP wants to do is stop the work of a lawfully crated agency, not reject an individual, they won’t confirm anyone and that just anti-democratic. This is a tactic that violates the spirit of a rule in order to thwart the majority from putting into place a legitimately passed policy solution. The rules are suppose to be 51 votes for a pass not 60. … now I guess it’s 60, I’m sure the GOP will be just fine with absolutely nothing getting done ever.

    The GOP loses this one for the same reason they have been getting away with the filibuster everything we can tactic.

  49. Rick DeMent says:


    If you’re saying that Congress has an obligation to confirm someone to positions created “by a legitimate process of government by a duly elected majority,” must you not also take the symmetrical position that Congress has an obligation to appropriate money to fund activities created “by a legitimate process of government by a duly elected majority”? And does the absurdity of the latter position not suggest the absurdity of the former?

    I don’t I oppose without holding the purse strings, I thought that the tactic of denying funds to the war was BS (especially since the dems didn’t have the stones to opposes the authorization to use force legislation.

  50. Rick DeMent says:

    sorry my last post should have read:

    I don’t, I opposed withholding the purse strings,

  51. Simon says:

    Rick, re the power of the purse, you may oppose the wisdom of Congress shutting off the spigot in regard to specific activities, but surely you don’t claim that Congress lacks the authority to do so?

    As to procedural tricks, yes, the GOP seems to be arguing that it’s okay to stop the implementation of a law using procedural tricks, at least in some (and certainly in exceptional) circumstances. They’re right. It’s axiomatic in Constitutional law that one Congress can’t bind a future Congress, and we come back to the question of the power of the purse: If the decision of one Congress to create an agency doesn’t bind future Congresses to finance that agency, then I cannot see how it can bind future Congresses to confirm appointments to that agency. I agree with you that their goal is not to reject an individual but to prevent the operation of a particular office, but I don’t see any basis in the Constitutional text or tradition for the assumption that the Constitution limits the Senate’s basis for rejecting an appointment, that is, that advice and consent cannot rest on the conculsion that no person is fit for a particular office.

  52. Simon says:

    David, you’re missing the important point. Actually I think you’re missing several, but you’re missing the elephant-in-the-room size point: What the President is claiming is that HE has the unilateral authority to decide when Congress is recessed. That claim is not limited to situations where the President judges Congress to be in recess because [insert reason here]; it is an unlimited and illimitable assertion of authority. You say that “[i]t’s obvious Congress is not in Washington and is not doing any work, so it’s pretty easy to see they are actually in recess.” Well, Congress is never more than a few hours from being in Washington and rarely does any real work even when it’s in session; there is nothing in the logic of President Obama’s claim that prevents a President from making recess appointments at four AM on a day when Congress will be in session, because at that moment, Congress isn’t in DC (or at least, it’s a few hours from being able to assemble), and it’s not doing any work. That absurd result is absolutely the necessary upshot of the President’s logic. The idea that the President gets to decide when he is able to bypass the normal appointments procedure makes a mockery of our structure of government.

    Speaking of our structure of government, Socrates faults me because my position seems antidemocratic, which is rather like complaining that a cup of coffee doesn’t taste enough like tea. Our government isn’t democratic, and the Senate is the least democratic component of it. We aren’t a democracy. Our government was never intended to be democratic, the Constitution is not in fact democratic, and conservatives have wisely spent the last century fighting progressive attempts to make it more so.

  53. David M says:

    There’s plenty of support for the idea that the sham sessions don’t mean it wasn’t in recess, seems pretty defensible to me. Ergo, Obama will win the political battle as the GOP really has nothing here.

    If the GOP in Congress don’t like the laws then they can change them, this nullification attempt is not doing anyone any good.

  54. mattb says:


    At this point I’ve brought a lot of evidence that the House essentially blocked a break. Can you provide evidence that they didn’t? Seriously, you have continued to argue despite a significant amount of evidence — admittedly anecdotal, but from reliable sources — that this comes down to a congressional move.

    You have yet to provide any evidence to the claim you are making (other than to claim that my evidence isn’t enough).

    Speaking to the larger point, my understanding is that part of the argument is that is being made is not that all pro forma sessions are equivalent to recess, but that in order to transition from the previous session (2011) to the current session (2012) congress must necessarily enter a recess.

  55. Simon says:

    Matt, can you explain to me how I (or anyone else) can “prove” or “provide evidence” that the Senate hasn’t asked for an adjournment, beyond showing the absence of such a vote in its voting record where we would normally expect to see it? You’re essentially asking me to prove a negative—an unattractive debating posture. It makes much more sense for you to prove or provide evidence that the Senate has asked for an adjournment, because all you have to do is to tell me the date on which the Senate adopted the adjournment resolution, and then we can all check the Congressional Record and the Senate’s website to confirm the claim.

    And you’ve yet to address the point I’ve made above: Even if the Senate did ask for an adjournment only to be thwarted by the House, can you explain why the President does not then simply adjourn Congress, an authority he certainly accrues the instant the House rejects the Senate’s adjournment motion and arguably accrues at some point even if the House does nothing with the Senate resolution?

  56. Simon says:

    David… You mean to say… LARRY TRIBE… and THE NEW YORK TIMES… are willing to support President Obama?


  57. Bobooma says:

    This is one more nail in the coffin of Obamas failed presidency.

    First of all this agency is a duplicate of what allready exists, so where is there any additional protection that doesn’t allready exist?

    Second, no one likes a dictator.

    Third, its unconstitutional. If Obama recongizes the proforma session that allowed the 60 day tax extension to be signed into law, how is that pro forma session differnt than this proforma session? It’s not.

    Fourth, The appointments will either be rescined or nothing will get done and maybe that’s what Obama wants. It’s not what the voters want and thats one more reason why he will loose.

  58. JB says:

    Perspective from a total outsider (one of those “We, the People” folks): Do those close to the situation even have a clue? Do any politicians even see the forest amongst the trees? And notice that there is smoke coming from somewhere in that forest?

    If Obama’s gloves come off it might finally awaken Congress into standing up to his shenanigans. (Though I’m not holding my breath) Mere obstructionism is too passive a response in a government so far removed from its foundations and operating by mere token reference (by way of wild & baseless interpretations) of the Constitution by the judiciary and the other two branches. Can anyone seriously and with a straight face claim this is working well? One side vs. the other is largely irrelevant when we’re taking on water and the deck is tilting enough for most of the deck chairs to have fallen overboard. Hello, anyone hear me? Big government builds endless monuments to big government. And “We, the People” are expected to pay for it all. Even though it seldom serves the average citizen. And while many irresponsibly turn their back on both collective & their own individual debt the rest of us are struggling to tread water. All we really want is a fighting chance, but more spending is destroying our hopes. Both major parties have failed us miserably. Both parties have done far too much grandstanding about mostly nothing. When will we see all parties put selfishness aside and finally do right for America? Starting with our horrendous debt would be a great start, decluttering the endless do-nothing laws while starting some REAL accountability in gov’t (& fiscal policy) for a change is my suggestion. Sounds almost like a revolution, doesn’t it? Actually I do not advocate a literal revolution, but I absolutely advocate a 180 degree turn in our expectation of what government should do FOR us as opposed to what WE ALL must do for our country. (I said country not gov’t, BTW) Status quo is standing up to our knees in water aboard a rapidly sinking ship. So now we argue about the virtues of each side’s argument?! I may understand little about political strategy, but I do with absolute clarity understand the massive failure politics has lead us to. We may still have a chance, but it sure won’t lie with mere politics as usual! (And no, I am not a Libertarian!)

  59. @James Joyner: You think the president (lower case that is what he deserves) has the right to brake the law? Well, us oldies do not think so. The House was in proForma Session which means as long as the House has a mini session every 3 days they are in seession and the president can not without braking the Constitution, appoint anyone.

    This went into effect when there where horse and carriages but, Reid made it come alive again in 2007 to block G.W. Bush from making appointments. The president finds it easy to by-pass the Constitutiion if you think that is OK we will become what Obama is heading for a socialist country. Good luck to you if he does, cause I probably will be long gone. With what is happening in the country your opinion is not good enough study before you open your mouth. Our wonderful America is cripled and Obama is going to kill it.

  60. mattb says:

    Fair point raised on the issue of “show me the transcript.” I don’t have the time (or lacking that the skill) to search through the senate record to see if they voted on adjournment for the winter break. So lacking the ability to prove that, and lacking a newspaper article that provides that information, I admit that I cannot decisively prove that the Senate actually requested the break and the House took the step of voting to deny it.

    As to the second issue, while this is a questionable power grab by the president, I would be even more uncomfortable with the idea of the President forcing an adjournment in order to do recess appointment. That seems to me would set an exceedingly dangerous prescident and radically expand the potential powers of the Presidency.

    Regardless of who is in the White House, such a move should never be done.