The Lightbringer oversteps? interesting critique, given the source. -- Cordray's Recess Appointment Sure Doesn't Look Constitutional To Me Timothy Noah January 4, 2012 I'm no lawyer, but: 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. Two high-ranking Justice department officials from the (George W.) Bush administration support the position Obama has taken on the grounds that the executive branch has always maintained a "common-sense view" that the Senate is not in session when nobody's there and it isn't doing anything. But they don't cite any court decisions to back this view up. Instead they rely on a 1905 report (cited on page 8 of this Congressional Research Service report) by the Senate judiciary committee that defines a Senate recess as the period of the time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.... The trouble with this definition is that it would define as a Senate recess just about every weekend of the year. Maybe there's a stronger legal foundation to the president's decision that I don't know about. But based on what I've seen so far, I'm having trouble understanding how the recess appointment of Cordray can possibly withstand a legal challenge. And I'm really having trouble understanding why Obama didn't take advantage of his constitutional window yesterday, when the Senate was inarguably in recess. Something else I'm having trouble understanding is why, if Obama was going to cast caution to the wind, he didn't appoint Elizabeth Warren to head CFPB last year. Perhaps he decided she'd be of more use to him as a strong Senate candidate in Massachusetts. Cordray is a good choice, but Warren was a better one. My fear is that, having beat the Republicans on the payroll tax issue, Obama is now looking for another fight. But--again, based on my limited knowledge thus far--this fight looks like an unnecessary one. I hope Obama hasn't traded his previous vice of timidity for a new vice of recklessness. Update: 3:25: Brian Beutler of Talking Points Memo, who's done an excellent job reporting on all this, cites a newer CRS report issued in December. But I'm at a loss to find any legal justification for Obama's action in this report either. Nor am I reassured by this issue brief by Ian Millhiser of Think Progress. Millhiser makes a strong case that the level of Senate obstruction at present is unprecedented. But he makes no case at all for why the president should get to decide when the Senate is in recess and when it isn't. I'm beginning to think that if there were a more solid justification for Obama's action someone would have made it by now. Update, 3:45: Beutler reports that Obama has added three recess appointments to the National Labor Relations Board. Par-tay! To be clear: I favor a bolder stance by our president to counter Republican obstruction. But I just don't see how these appointments can be legal.
How is this any different from the Bolton appointment back then? Don't have a problem with either one, really.
don't recall the details on the Bolton appt. i think the argument now is that Obama is essentially deciding for himself when the senate is in session, which is akin to congress deciding whether or not Obama has signed a piece of legislation, essentially, deeming it passed. more from the other side of the aisle: http://campaign2012.washingtonexami...ial/senate-recess-constitution-says-no/292211 -- Article One, section Five of the Constitution states: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days... This presents a problem for President Obama, who claims to have just made a recess appointment when the Senate is not actually in recess. 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. There is an argument that pro-forma sessions are just a sham. Obama is not the first to make it. I don't find it very persuasive, but it's an argument that some very smart people make. 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. The only argument left is one that the Obama administration has itself rejected -- that a three day "recess" is sufficient for such an appointment.
Ok here is what has been happening. The Constitution states that both the house and senate have to agree together to go into recess. If one is in session the other has to be as well. So in order to prevent recess appointments, the Republicans have been technically keeping the house in session by gaveling in and out every few days for a few minutes at a time. It's a technical measure designed to (you guessed it) prevent Obama from doing anything. Obama basically told the Republicans **** you, and made an appointment anyway. The Republican tactic is unprecedented as is so you know what, I'm down with testing the Republicans on this. (Obama's argument is that the technical 3 days off that they take constitutes a recess) Obama has had the lowest rate of appointments in history so he has to try something. (less than 30% of his appointments have even gotten a floor vote) The Republicans are being downright criminal by stalling the basic levers of government. Using tactics like this isn't oversight of the government. It's abusing the constitution because you dont happen to like the president who also happens to have democrats controlling the Senate.
definitely, if the ends you're talking about are an one-term Obama presidency, and the means are dragging the country down so as to make it ungovernable.
well, think about that for a moment. what's to stop a president Santorum (humor me) from recess appointing John Bolton to the Supreme Court? once you go down that road... and potentially, another problem for teh once: http://volokh.com/2012/01/04/legality-of-cordray-appointment-under-dodd-frank/ -- Legality of Cordray Appointment Under Dodd-Frank Todd Zywicki • January 4, 2012 5:04 pm 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.
Protip: If you want to enforce illegality under Dodd-Frank, it would help to not be engaged in a multi-year campaign to frustrate Dodd-Frank by using parlor tricks to deny the statutorily granted power to enforce Dodd-Frank and prevent its implementation.
uh... nothing stops parallel universe president Santorum from doing so, at least nothing in the Constitution. In fact, believe it or not--- One can only hope that parallel universe Justice Bolton is as good as one Supreme Court recess appointment in our dimension---a certain Earl Warren, who you may or may not know for desegregating schools, introducing Miranda, rewriting the electoral map, and providing mandated legal aid for those who could not afford their own attorneys. they could even follow the same path of assumed conservative ironhead, turned progressive coalition builder. Parallel Bolton could just become the liberal bulwark of the Zupreme Zourt and a transformational figure in Zmerica 45th century history. wouldn't that be nice?
I have to agree with the messenger on this one. Ideally, we shouldn't tolerate breaking the letter of the law. I don't think Obama is breaking the spirit of that clause though. Whereas, we sure as hell know that Republicans are diabolical at corrupting the law's spirit when it suits their needs even if the letter in this case seems to be slightly tilted in their favor. Ugly politics...
If the appointees have any sense or dignity they will refuse to assume office until they can be appointed according to the law.
Letter of what law? Vague legislative procedural interpretations aren't really law in the same way the Public Laws (and eventually the USC), are, say, e.g. Public 111-203, the letter of which is being violated.
It is interesting that Obama chooses uncharacteristically to stick his neck out. I guess that Mr electoral calculating machine feels that consumer protection is finally a good issue to take the GOP to task on. I think he is right and the GOP will cave and pretend this did not happen after a while of stirring up their most devout followers.
of course, but the senate is not actually in recess now. my point was, if Santorum deemed the senate to be in recess, then went forward with his appointments. that'd be copacetic under the new "I Won Doctrine."
