Did President Obama overstep his Constitutional authority? NY Times on recess appointment of CFPB h

[ProgressiveEconomist]

NY Times on recess appointment of CFPB head Cordray today.

After months of unprecedented Republican blocking of implementation of parts of the Dodd-Frank financial reform bill, President Obama made a recess appointment today of David Cordray as head of the new Consumer Financial Protection Board. Senate Republicans had not objected to Cordray on grounds of qualification for the office, but rather opposed ANY implementation of the Dodd-Frank CFPB provision.

Republicans reacted with fury to the President's action, saying it was unconstitutional because the Senate was in 'pro forma' session, not in recess. But even former Bush lawyers had argued against the 'pro forma session' blocking tactic, which Democrats had used successfully to deter any Bush recess appointment attempts during his last year in the White House.

WHAT'S YOUR OPINION? Fid the President overstep his Constitutional authority?

From http://thecaucus.blogs.nytimes.com/2012/01/04/obama-tempts-fight-over-recess-appointments :

Obama Tempts Fight Over Recess Appointments - NYTimes.com By CHARLIE SAVAGE

President Obama’s decision on Wednesday to grant recess appointments to four officials — even though the Senate contends that it is not in recess — was an unprecedented legal step that brought into sharper focus a recent bipartisan struggle over presidential power. In early 2007, shortly after Democrats took control of the Senate, President George W. Bush made several recess appointments. But in November 2007, Senate Democrats did not formally recess before going home for Thanksgiving. Instead, they stayed in 'pro forma' session, sending a member into the chamber every three days to bang the gavel.

Senate Democrats repeated the move during breaks for the rest of Mr. Bush’s presidency, and Mr. Bush did not try to make any further recess appointments. Under President Obama, Republicans – despite being a minority in the Senate — turned the tables by also keeping the chamber in pro forma session. The development raised the prospect that Congress had found a way to permanently take away the power of presidents of either party to make recess appointments.

By making the four appointments this week-- Richard Cordray as director of the new Consumer Financial Protection Bureau, and three members of the National Labor Relations Board-- the administration is challenging that tactic. ... the Senate minority leader, Mitch McConnell, Republican of Kentucky, denounced the move, saying that Mr. Obama had 'arrogantly circumvented the American people' and endangered 'the Congress’s role in providing a check on the excesses of the executive branch.' ...

Still, two top lawyers from the Office of Legal Counsel in Mr. Bush’s second term, Steven G. Bradbury and John P. Elwood, published an op-ed in The Washington Post in October 2010 saying that they believed pro forma sessions were invalid as a way to prevent presidents from making recess appointments. Mr. Elwood expanded on that analysis in a lengthy blog post on Wednesday.

Another conservative veteran of the Office of Legal Counsel differed over the constitutionality of Mr. Obama’s move. Todd Gaziano, who worked in the office under several presidents two decades ago and is now director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation, called the move 'a tyrannical abuse of power' and 'quite shocking' in a blog entry on Wednesday. Arguing that the Senate is not in recess, Mr. Gaziano focused on a clause in the Constitution that says neither house in Congress may adjourn for more than three days without the consent of the other house. He notes that the Republican-led House of Representatives did not consent to a lengthier recess for the Democratic-led Senate ...

[librechik]

1. Obama will get a fight anyway, but now it's moot.

Let them scream and try to undo hi recess appointments--much better than not appointing anyone out of fear the repubs will block.

[Jackpine Radical]

2. Absolutely.

And I remember when Feingold caught hell for acting on his belief that it was the responsibility of the Senate to approve a President's nominations unless there was a clear and compelling reason not to do so.

Kinda looks different now that the shoe is on the other foot, I'd say.

[ProgressiveEconomist]

15. 'The shoe is on the other foot'. GREAT point! Resolving whether pro forma sessions

completely remove Presidential power to make recess appointments will affect Republican presidents, Democratic presidents. and thred-party Presidents.

This is a matter of Presidential power versus Congressional power.

Even a right-wing tilted USSC must consider that ruling against President Obama on Coordray would tie the hands of future Republican presidents, too.

Personally, I think Presidential power to act during an emergency should not be limited by such a preposterous tactic as getting a few minority-party Senators to bang a gavel in a near-empty chamber every few days. IMO at least there would need to be two-thirds of Senators present for several hours each weekday to have a legitimate session that could block a recess appointment.

[Jackpine Radical]

16. Oh, maybe they can do a Bush V Gore

& rule on this one with a special clause that forbids Democrats from using pro forma sessions to block appointments.

[Autumn]

3. Did Bush?

I don't fucking think so.

[ProgressiveEconomist]

4. But Bush was too timid to challenge Democrats' use of the 'pro forma session' strategy--

See the second paragraph of my OP lead-in and the second snippet from the accompanying NY Times article

[spanone]

5. did junior's one hundred and seventy one recess appointments overstep his authority?

http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP%2BP%5CW%3B%20P%20%20%0A

[Inuca]

6. That is not the issue

He did not make appointments while the Senate was in one of these so called "sessions". At least I don' tthink he did.

[ProgressiveEconomist]

9. See post #4 above. None of Bush's appointments were made during a pro forma session.

[spanone]

12. i understand.

[LiberalFighter]

7. 2 points

1) The House does not have any say on appointments or recess appointments.

2) I bet Senator Robert Byrd left some presents to the Democrats to be used at a later time regarding the Constitution and the Senate rules.

[ProgressiveEconomist]

11. Re Point #1. At least one right-wing Constitutional lawyer says you're wrong.

Todd Graziano of the Heritage Foundation is quoted in the OP's last snippet from the NY Times article. He says the House must agree to any Senate recess. Is he wrong? Can you prove it?

[LiberalFighter]

18. Only one? Only are Right-Wing?

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.

he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

From what I could determine only when there is a recess of more than 3 days does it require consent of both chambers.

Considering that the Senate does absolutely nothing when they create the sham they are in effect in recess regardless of them showing up.

[annabanana]

8. I thought that Democrats controlled the Senate. How can the minority party enforce pro forma

sessions? Does Harry Reid have ANY authority in that place?

[ProgressiveEconomist]

10. That was my thought too. I think there may be a longstanding Senate rule that requires

both the Majority Leader and the Minority Leader to agree to any adjournment. I vaguely remember that such a reule was prominent in another Senate story during the past few years.

But my memory could be wrong.

[gateley]

13. Some procedural wrench the Republicans always throw into the works, I think. nt

[PuffedMica]

14. Our President was Senior Lecturer of Constitutional Law at the University of Chicago Law School

For eight years he taught Constitutional Law.

He effectively overcame the stonewalling opposition of the Republicans by using perfectly legal facets of the Constitution. He actions were quite clever in fact.

[Jackpine Radical]

17. The worst that can happen is that Obama will lose in court

& the appointment wil be nullified.

On the other hand, and I think most likely, he will get away with it.

Neither consequence is worse than doing nothing, and one of them is obviously much better.



As an afterthought, it's too bad he can't clone Liz Warren & appoint the clone to the position as long as he's gonna appoint SOMEBODY.


I applaud Obama for this.

[ProgressiveEconomist]

19. 'I applaud Obama for this'. And I agree with you. Any lawsuit would likely be

brought by somebody who's losing million$ because Cordray's rules depress business. Shepherding a Federal case through lower courts and up to the USSC isn't cheap. IMO, the biggest losers from today's Presidential actions are payday lenders who charge poor suckers up to 300 percent interest.

Imagine the bsd press a lawsuit by the payday lenders' association would generate for the Rs. 'Republican obstruction of the CFPB generated $X million in payday lender profits.' 'Republican Senators S and B (I did not choose these initials randomly) received more than $Z in campaign cash from payday lenders.'

The WH and Justice must be looking forward to any lawsuits with anticipation. They would be wonderful populist politics in a crucial election year. And, as you point out, the downside risk is tiny.

IMO the Presidents move today is BRILLIANT politics.