The New York Times reports:
President Obama touched off a fierce election-year confrontation with Congressional Republicans on Wednesday, defying their deep opposition to appoint Richard Cordray as director of a new consumer protection agency and fill three labor board vacancies.
The decision to install the four nominees without Senate approval under the constitutional provision for making appointments when lawmakers are in recess was a provocative opening salvo in Mr. Obama’s re-election strategy of demonizing Congress. It threatened to ignite a legal challenge and left Republicans fuming that the president was abusing the recess privilege.
Roger Pilon writes at Cato:
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.
The fact is, the President firmly believes he has the constitutional authority to act as he did. And they can make a lot of process arguments about it. We feel very strongly that the Constitution and the legal case is strongly on our side.
But more importantly, this isn’t about process, this isn’t about whether or not Congress is in session. And if I could digress for a minute, I think all of you should run up to Capitol Hill, check out the House and Senate and see if you can find a single member of Congress, and then tell me on this working day for most Americans whether or not Congress is in session.
But what it’s really about is the absolute urgency to install Richard Cordray as our consumer watchdog so that he can get to work today, as the CFPB has already announced, protecting middle-class Americans, protecting seniors from dishonest non-bank mortgage brokers, the kind who took advantage of that elderly couple the President met with yesterday in Cleveland, or to help students not get taken advantage of when they’re dealing with their student loans, or folks who deal with payday lenders.
