Wednesday, January 4, 2012

Obama goes nuclear, appoints Cordray in defiance of the Constitution

Today during his visit to Shaker Heights, President Obama will announce that he is using a recess appointment to install former Ohio Attorney General Richard Cordray as the head of a new bureacracy called the Consumer Financial Protection Bureau.

The problem is...that the Senate isn't in recess. Ace of Spades provides good commentary on the Constitutional issues involved here:
Let's look at the relevant words of Article II, Section II of the Constitution.
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.
Funny, I don't see anything about "effectively" being in recess.

This is a blatant violation of the Constitution and he's doing it simply to pick a fight with congressional Republicans and energize his base.

Part of his strategy is dependent upon the MFM ignoring this power grab and early reports seem to indicate they will come through for him.

As for the politics of this...we're going to see calls for the GOP to begin impeachment proceedings. Let's just not even think about that. It's simply not going to happen and it'll give Obama exactly what he wants. He'll claim that Republicans are focusing on political games instead of helping the American people, blah, blah, blah.

There's really not much the GOP can do. A lawsuit will never work (any court will call it a "political question" and punt) and going nuclear will play into Obama's hands.

Basically Obama is running for President and he wants his opponent to be "Congressional Republicans". Sometimes the best strategy is to skip a fight you want to have and should have simply because simply engaging in it is a win for your opponent.

Think of it as ignoring a comment troll. It's unsatisfying but effective.
In addition, he is breaking 20 years of precedent, and violating a brief issued by Bill Clinton's Justice Department. Ironically, Obama's own Deputy Solicitor General cited that very brief just a year ago.
“President Obama is under strong pressure from liberals to use his recess-appointment power during the congressional break, but doing so would break 20 years of precedent, putting him in a tough position. Using this recess to appoint Richard Cordray to head the Consumer Financial Protection Bureau, as liberals have urged, would also contradict a brief issued by the Clinton Justice Department in 1993, which Obama’s own deputy solicitor general cited last year.”
Guess who else thinks recess appointments, even those made legally while the Senate is actually in recess, are an abuse of power?

Nancy Pelosi said that recess appointments “subvert the confirmation process” and “will harm The United States’ reputation in the eyes of the international community.
"The President’s decision to circumvent the Senate and use a recess appointment naming John Bolton as ambassador to the United Nations is a mistake….For President Bush to use a recess appointment for such a controversial nominee – not because there was a compelling case that Mr. Bolton was the best person for the job, but merely because the President had the power to do it – subverts the confirmation process in ways that will further harm the United States’ reputation in the eyes of the international community. The American people deserve better.” (Rep. Nancy Pelosi, “President’s Recess Appointment Of John Bolton Is A ‘Mistake,’” Press Release, 08/01/05)
Harry Reid called recess appointments “an end run around the Senate and the Constitution.”
“I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Harry Reid, Congressional Record, S.15980, 12/19/07)
This was their reaction to a properly made and Constitutional recess appointment, something that Cordray's appointment is not. I suspect we won't hear the same folks joining their Republican colleagues in their denunciation of this latest Obama power grab.

Also, keep an eye on Cordray, folks. He could be Governor Kasich's opponent in 3 years.


  1. Produce the journal of today's Senate session then, and I'll say what Obama did was unconstitutional.

    You can't because the Senate was not in session. Not in pro forma or otherwise.

    Yet another know-nothing, attack Obama over everything post at TBP.

  2. Congratulations on discovering that members of the legislature who belong to a different party blast the president for using his constitutional recess powers to circumvent the congressional minority's refusal to permit the Senate to give its advice and consent on appointments.

    How long do you think it'd take for me to find a quote from Boehner supporting Bush's decision to make recess appointments?

  3. Modern, you're just plain lying, and you know it.

    Yes, Bush made recess appointments. When the Senate was actually in recess.

    Later, Harry Reid kept the Senate in pro-forma session, and Bush NEVER ignored it and made appointments anyway. Because it's not constitutional.

    Obama has decided to go ahead and do it anyway. Its not the same thing at all. He just set a new precedent.

  4. US Constitution Article I Section 5, reads in part, “Each House may determine the rules of its proceedings…” Maybe we should consider that to mean that the Senate, not the President, is the final arbiter of when it is in session, and when it is not.

    But then I guess the plain text of the Constitution would be getting in the way of Obama's re-election: can't have that.

  5. The House and Senate WEREN'T in pro forma session when Obama made the appointment Bytor, which is precisely why Boehner and Co. haven't called it unconstitutional.


No profanity, keep it clean.

Note: Only a member of this blog may post a comment.