Recess appointments while Congress is not in recess
Yesterday John Hinderaker noted,
President Obama took his war against Congress to a new level, announcing four “recess appointments” when the Senate was not, in fact, in recess. The appointees included Richard Cordray to head the new Consumer Financial Protection Bureau and three new members of the National Labor Relations Board.
The Senate was in pro forma session yesterday, so there is no recess and Obama’s appointments are invalid by any historical or legal–according to his own Department of Justice–standard.
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.
Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.
But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’” A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.
So what is this? It’s politics — Chicago politics, plain and simple.
Jonathan Chait thinks The Grand Strategy Behind Obama’s Recess Appointment is to trap Mitt Romney. Richard Fernandez has something to say about that,
If Obama is risking a constitutional crisis and going through all this trouble to trap Mitt Romney because he fears a “return to the Bush era” then his thought processes are truly irrelevant to events taking place all around him. It is events themselves which are destroying the ideology and goals of Hope and Change. It is shredding the last vestiges of his Middle Eastern policy. It is making a mockery of his Green Energy platform. It is repudiating his perfection of the New Deal. It is doing all of these in the strongest possible way and Mitt Romney has nothing to do with it.
I go for the simpler explanation: The reason Obama does this is because he thinks he can get away with it.