When I saw President Obama miss his chance to use the “Roosevelt precedent” to appoint Richard Cordray to head the Consumer Financial Protection Bureau, or make any recess appointment, I considered the matter closed. The other two options for Obama to recess-appoint would set new precedents for the Presidency, and I didn’t think he would want to go near that kind of controversy. But the Wall Street Journal reported yesterday that the President got legal clearance to basically ignore the pro forma sessions being held by Congress, enabling a recess appointment at any point in this holiday break.
White House attorneys have concluded they have the legal authority to make a recess appointment despite Republican efforts to block the move, Democrats said Tuesday, and administration officials say they reserve the option to install Richard Cordray as head of the new Consumer Financial Protection Bureau without Senate approval [...]
One way around the GOP maneuvering would have been for the White House to appoint Mr. Cordray during the short window in between congressional sessions. That window was open Tuesday morning, and some expected Mr. Obama to act then. But he didn’t, and administration officials maintained that they still have all options on the table.
That’s because the White House has concluded that it can make the appointment even if the Senate has not formally recessed, said one Democrat familiar with White House thinking. “They have decided no one can stop them.”
As it turns out, the President will spend today in Cleveland, Ohio, the home state of Cordray. So there would be some poetry to announcing the recess appointment at that time.
I really didn’t think Obama would want to set a new Presidential precedent like this, especially when it’s just so gosh darn mean to the Republicans. But obstructionists in the Senate have really left him little choice. They lost the vote on the CFPB, then tried to hijack the directorship to nullify that vote and force changes. It’s not like Senate Republicans can do much more to block an already stalled agenda. And until a price is paid for obstruction, there’s no reason for the obstructors to stop.
According to Business Week, the likely consequence of this appointment would be a court battle over the applicability of pro forma sessions. That kind of arcana shouldn’t be a political factor in this. Republicans will no question call Obama a tyrant whether he appoints Richard Cordray or walks into the Senate chamber on bended knee, tissue in hand, begging for mercy. Plus, the President can posit it as being on the side of consumer protection, putting Republicans on the opposite side.
As for the judicial outcome, that remains to be seen. Past practice has been that the Senate would need to be out for more than three days for recess appointments. But you could conceivably challenge whether pro forma sessions are actually sessions. This is why I thought it would be easier just to use the settled Roosevelt precedent, but maybe it’s time to kill the pro forma sessions once and for all. Actually, the better move would be to end the super-majority for non-judicial Presidential appointees, and allow a President the ability to choose his own staff without a minority veto restriction.
We’ll see what happens.
UPDATE: White House communications director Dan Pfeiffer makes it official:
We Can’t Wait: Today in Ohio, President Obama will announce the recess appointment of Consumer Watchdog Richard Cordray http://apne.ws/8JyTJ