As mentioned earlier, the President will make a recess appointment today for Richard Cordray to run the Consumer Financial Protection Bureau, opening up the bureau to regulate non-bank financial institutions and giving the new agency its first leader. This is a bold move by the President, and to put it in context, it’s important to understand exactly what has been going on with the advise and consent power in the Senate.
There are currently 202 unconfirmed executive and judicial nominations. This is despite the Senate doing basically nothing on policy for an entire year. The Senate GOP has routinely filibustered nominees, forcing cloture calls and long delays in getting appointments.
In the case of Cordray, who had majority support in the Senate, 44 Republicans wrote a letter saying that they would block not only him, but any nominee for the CFPB, unless the agency was radically transformed – you might say gutted. Many have called this a nullification strategy, and it’s hard to argue with that. Having lost the vote to bring the agency into existence, the Senate GOP simply wanted to relitigate that vote. Just a couple weeks ago, Mitch McConnell refused appointments for every nominee on the executive calendar to block a Cordray appointment, saying he would not let anyone go forward without “assurances” from the President against recess appointments.
As for the judicial question on whether pro forma sessions count as keeping Congress in session, the 11th Circuit Court of Appeals ruled back in 2007 that “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” On the other side of this, Solicitor General Neal Katyal, in a 2010 case, argued that the Administration recognized that a 3-day recess was “too small,” in their understanding, to make appointments.
That understanding has changed. And when the Senate abuses its power to this extent, that understanding frankly ought to change. There’s nothing particularly cherished about holding a minority veto over executive staff appointments, especially when the opposition uses it as a wedge to make changes in the makeup of the federal agency in question. Recess appointments aren’t my favorite part of the law, but neither is rampant obstruction where no price is paid in the end for that obstruction.
I imagine that Republicans will take this to court now. But there’s no question that, when faced with this kind of obstruction, it was necessary for the White House to do something to protect their ability to have the staff in place they desire.
UPDATE: Here’s the statement from Elizabeth Warren, who hired Cordray for CFPB, and who stood up the agency herself:
President Obama’s decision to overrule the big banks and the Senate Republicans who are protecting them gives consumers a strong ally and advocate in Washington. The President has made an exceptional choice in Richard Cordray as head of the new Consumer Financial Protection Bureau.
Republicans never had any substantive objections to Mr. Cordray, the very qualified former Attorney General of Ohio. Instead, Senate Republicans blocked a confirmation vote for anyone to head up the consumer agency. Instead of implementing the law as written, Senate Republicans tried repeatedly to undermine the agency’s effectiveness and to frustrate efforts to hold the big banks accountable for bringing our economy to its knees.
The President made every effort to present a candidate for a Senate vote, but he was right not to let Senate Republicans block full implementation of the consumer agency. Senate Republicans will surely complain about the recess appointment, but their refusal to allow an up or down vote on Cordray’s nomination is just another example of the political games in Washington that must end.
It’s time the big banks and their allies acknowledge the urgent need for change. It is time to work with Richard Cordray as he promotes basic, common sense rules to level the playing field for consumers.
Of course, if Obama was willing to do this for Cordray, he could just as easily have done it for Warren.