Doctor Fate wrote:I'd love to see it in court.

Doctor Fate wrote:Furthermore, why did Obama's solicitors make the three day case themselves?/

Because at the time it was current interpretation and it suited his purpose. That has now changed so he is returning to previous precedence.

Doctor Fate wrote:Finally, it is my understanding that the agency CANNOT do anything until the guy is voted on by the Senate (that was in the bill), so I've a feeling this isn't over yet.

Ray Jay wrote:Steve, I just don't see your point on this as flouting the Constitution. Both sides play these sorts of games all the time. After everyone marshals their arguments, (plays their cards, beats their chests, engages in other primate behavior, etc.) this is probably not a Constitutional crisis. If it is, the S.C. can take it and we can all abide by their decision. More likely it's just business as usual. Both sides are making political calculations based on the upcoming presidential election. Obama has shown his colors (hyper-partisan not post-partisan), but so have the Republicans by holding out on many appointments. Now we'll see lots of discussion ultimately aimed at the 10% of us who are independent.

As someone who strongly supported a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau, I'm confused as to why President Obama chose to act today. Had he appointed Cordray yesterday, during a brief period when the Senate was technically in recess, the action would have been supported by precedent. Apparently, though, that appointment would have lasted only through 2012. By appointing Cordray today, Obama can keep him at CFPB through 2013.

The trouble is that the Senate isn't in recess. For complicated reasons the Republicans have the ability to prevent the Senate from going into recess, and they have done so in order to maximize the difficulty of Obama making recess appointments. The White House maintains that keeping the Senate in pro forma session is a stupid gimmick, which is certainly true. It further maintains that because it is a stupid gimmick, that gives the president the right to act as though the Senate were in recess. That's the part I have trouble following.

Sassenach wrote:Could somebody help me out with the background to this ? The way I've interpreted it is that the Republicans in the Senate disagree with the creation of this agency and so they're perpetually stonewalling the appointment of anybody at all to run it, knowing that this will prevent the organisation from doing any work until hopefully there's a Republican President next year who can scrap it.

Sassenach wrote:I take your point about constitutionality Steve, but couldn't the procedure Russ described earlier whereby members of the Senate conspire to ensure they remain permanently in session also be deemed an infringement of the Constitution since it's a mechanism designed to prevent the President from exercising a power specifically designated to him by the Constitution ?

Archduke Russell John wrote:

Doctor Fate wrote:Furthermore, why did Obama's solicitors make the three day case themselves?

Because at the time it was current interpretation and it suited his purpose. That has now changed so he is returning to previous precedence.

Update, 5:35: Sarah Binder, a political scientist at George Washington University, has the most reasoned defense of the recess appointments that I've seen. But the 2004 appellate decision she cites, Evans v. Stephens, wasn't about whether the president got to decide when the Senate was in recess. It was about whether the president was allowed to make a recess appointment during an "intrasession" Senate recess as opposed to an "intersession" recess. The court said he could. But the Senate isn't in an intrasession recess. It isn't in recess at all--not according to the Senate, anyway. And in Evans v. Stephens the court was able to point out that 12 presidents had previously made "more than 285 intercession recess appointments." Today's appointments, by contrast, appear to be the first recess appointments ever made when the Senate was technically in session. For procedural reasons that I don't understand, the Supreme Court denied cert, though Justice Stephens emphasized it wasn't on the merits of the case. Something tells me it won't deny cert this time.

Doctor Fate wrote:Finally, it is my understanding that the agency CANNOT do anything until the guy is voted on by the Senate (that was in the bill), so I've a feeling this isn't over yet.

It is my understanding Dodd-Franks does not contain a generic clause that says the Director's position is Senate confirmable. Rather, it specifically states the Secretary of the Treasurary heads the CPA until a Director has been approved up by the Senate. It is a bit of an legalistic argument but an interesting one none the less.

Putting a director in place is critical because the CFPB cannot exercise its full consumer protection authority unless a director is in place

Basically, the situation, as I understand it, is the Director of the CFPB has a lot of power to issue regulations. Senate Republicans feel it puts too much power in one person's hands.

Doctor Fate wrote:Maybe. From my previous citation in TNR:

Update, 5:35: Sarah Binder, a political scientist at George Washington University, has the most reasoned defense of the recess appointments that I've seen. But the 2004 appellate decision she cites, Evans v. Stephens, wasn't about whether the president got to decide when the Senate was in recess. It was about whether the president was allowed to make a recess appointment during an "intrasession" Senate recess as opposed to an "intersession" recess. The court said he could. But the Senate isn't in an intrasession recess. It isn't in recess at all--not according to the Senate, anyway. And in Evans v. Stephens the court was able to point out that 12 presidents had previously made "more than 285 intercession recess appointments." Today's appointments, by contrast, appear to be the first recess appointments ever made when the Senate was technically in session. For procedural reasons that I don't understand, the Supreme Court denied cert, though Justice Stephens emphasized it wasn't on the merits of the case. Something tells me it won't deny cert this time.

So, you may be right and you may not be.

Doctor Fate wrote:From a lefty site:

Putting a director in place is critical because the CFPB cannot exercise its full consumer protection authority unless a director is in place

It would seem you are incorrect on this point.

Doctor Fate wrote:I think the bigger point is there is virtually no oversight of the CFPB. Democrats are so certain it will be filled with EPA-type zealots that they want it to function independently of normal funding considerations.

The historical instances cited here indicate that recess appointments have, on occasion, been attempted during sine die adjournments of three days or fewer. Nevertheless, the instances cited here each have unique characteristics, and their potential applicability under current practices and conditions remains open to question. 35 As far as can be determined, no succeeding President has made recess appointments under similar circumstances. The shortest recess during which appointments have been made during the past 20 years was 10 days.

Archduke Russell John wrote:

Putting a director in place is critical because the CFPB cannot exercise its full consumer protection authority unless a director is in place

It would seem you are incorrect on this point.

Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank. Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.

Doctor Fate wrote:Interesting piece here, citing the Congressional Research Service.

A President has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess.

The last clause of Section 5 of Article 1 of the Constitution says that "Neither House" of Congress can adjourn for more than three days "without the Consent of the other" house. In this case, the House of Representatives had not formally consented to Senate adjournment. It's true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let's hear Mr. Obama's legal justification.

Democrats had used a similar process to try to thwart Mr. Bush's recess appointments late in his term when they controlled both the House and the Senate. Prodded by West Virginia's Robert C. Byrd, who has since died, Majority Leader Harry Reid kept the Senate in pro forma session. Some advisers urged Mr. Bush to ignore the Senate and make recess appointments anyway, but he declined. Now Mr. Reid is supporting Mr. Obama's decision to make an end run around a Senate practice that he pioneered.

Some lawyers we respect argue that a pro forma session isn't a real Congressional session, and that's certainly worth debating. But that isn't the view that Mr. Reid or then-Senator Obama took in 2007-08, and it would certainly be an extension of Presidential power for the chief executive to be able to tell Congress that he can decide when Congress is really sitting and when it isn't. In any event, that still wouldn't explain the violation of the language in Section 5 above.

These appointments are brazen enough that they have the smell of a deliberate, and politically motivated, provocation. Recall the stories over the New Year's weekend, clearly planted by the White House, that Mr. Obama planned to make a campaign against Congress the core of his re-election drive. One way to do that is to run roughshod over the Senate's advice and consent power and dare the Members to stop him.

Mr. Cordray's appointment also plays into Mr. Obama's plan to run against bankers and other plutocrats. The President justified his appointment yesterday by saying that Senate Republicans had blocked Mr. Cordray's nomination "because they don't agree with the law setting up the consumer watchdog."

Yet he knows that Senate Republicans haven't called for the dissolution of the consumer financial bureau, or personally attacked Mr. Cordray, as Democrats like to claim. Republicans have said they'd be happy to confirm him if Mr. Obama agrees to reforms of the bureau that would make it more accountable to elected officials and subject to Congressional appropriations. As it stands, the bureau is part of the Federal Reserve but Mr. Cordray sets his own budget and doesn't report to the Fed Chairman. His rule-makings also don't need to worry about such inconvenient details as bank safety and soundness.

You might have been at the golf course on December 23, Mr. President, but here are the real facts. On that day, during a “gimmicky” pro forma session, the House and Senate passed a sweeping tax extenders bill, which granted tax cuts to almost every worker, unemployment benefits to millions of the jobless, and reimbursement payments to hundreds of thousands of healthcare providers. That is much more consequential than a few agency appointments. If Congress can do all that during a “recess,” they certainly have the ability to advise and consent on a handful of executive branch nominations.

And if a pro forma session is indeed considered a recess, can we now vitiate the ridiculous two-month extenders package? What if Congress would send you another stimulus bill to sign during a “gimmick” pro-forma session; would you reject it? As you know, Mr. President, many consequential things can occur during those few “seconds.”

Update: House Democrats seem to disagree with Obama. They held a press conference calling on Republicans to come back to Washington and join them in working on the conference committee for the extenders package. That’s some recess going on there.

freeman2 wrote:Given that Obama has not made much use of recess appointments as compared to recent presidents and that (as Archduke has ably pointed out) he has plausible Constitutional support for what he did, this is a complete non-issue. The only thing this dispute over these recess appointments shows is the continued obstructionism of the Republicans in Congress and their manifest hostility to workers and consumers. (three of the four appointments were to the National Relations Labor Board and one to the new consumer agency).

The last clause of Section 5 of Article 1 of the Constitution says that "Neither House" of Congress can adjourn for more than three days "without the Consent of the other" house. In this case, the House of Representatives had not formally consented to Senate adjournment. It's true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let's hear Mr. Obama's legal justification.