In a move that should hardly surprise anyone, Obama has circumvented the power of Republicans in Congress by appointing Richard Cordray as head of the new Consumer Financial Protection Bureau. It’s been clear for a long time that the fight has been escalating; Republicans are determined to wring concessions about the structure of the Bureau by blocking the appointment of anyone for that job, and Obama is just as determined to get around them by hook or by crook.
Jonathan Chait explains just how evil the Republicans are and why Obama is one smart and wonderful cookie to have done what he did. Investors Business Daily claims that Obama is acting more like a king than a president, and that “ruling” is what he had in mind all the time.
From Chait:
Fights between Congress and the president over presidential appointments have gone on for decades. But Senate Republicans have taken the fight to a new level by using the power to deny appointments to require changes in the laws. The Dodd”“Frank financial reform established the C.F.R.B., but Wall Street hates it, and Republicans openly vowed not to confirm any director unless Obama agreed to weaken the law.
This is an entirely new use of congressional power to block appointments. The normally mild-mannered James Fallows has called this “nullification,” and Republicans have begun using it to paralyze large swaths of the government. The normal presidential recourse against hardened opposition to an executive branch nominee is to make the appointment when Congress is out of session, but Republicans closed off that avenue as well, by holding pro forma sessions year-round. If it held up, this would give Congress enormous power over the president ”“ allowing it to unilaterally halt any agency it likes in return for any demand at all. They have likewise refused to confirm any directors at all to the National Labor Relations Board, denying the agency a quorum and essentially halting the enforcement of federal labor law.
So Obama tried the audacious and legally indeterminate move of simply declaring the pro-forma session a sham, insisting Congress really was on recess, and appointing his man.
From IBD:
A little more than three years after Jarrett declared Obama’s majesty, his spokesman Jay Carney warned on the day of the Iowa caucuses that “if Republicans choose the path of obstruction rather than cooperation, then the president is not going to sit here . .. he’s going to take the actions that he can take using his executive authority.”
Within a day, Obama made good on the threat. On Wednesday, he bypassed the congressional approval process and named Richard Cordray as head of the new Consumer Financial Protection Bureau. The appointment, made while the Senate is in a pro forma session and not in recess, came after that chamber blocked Cordray’s confirmation last month.
Not only is Obama trampling precedent that says recess appointments are to be done only after the Senate has been out of session for 10 days or more, he’s also trying to circumvent legislation.
As noted by Mark Calabria of the Cato Institute, the Dodd-Frank bill that created the Consumer Financial Protection Bureau requires the CFPB’s authority to remain with the Treasury secretary until the CFPB director is “confirmed by the Senate.” Cordray still lacks that confirmation.
In a case like this, I’m not sure what Congress can do to stop Obama. But the usual recourse in these fights between executive and legislative branches (and although the details may be different, this is hardly the first time) is the judiciary. And that’s where this may all end up:
The U.S. Chamber of Commerce has not decided whether it will file a legal challenge to the appointments, according to David Hirschmann, who heads the Chamber’s Center for Capital Markets Competitiveness. But he said he’s confident that Obama’s precedent-shattering move will land the administration in court.
Those who don’t mind Obama’s re-election might reflect on how this sort of thing could play out in the four years of Obama II.
[ADDENDUM: Professor William Jacobson of Legal Insurrection has more to say on this.]


