“I refuse to take ‘no’ for an answer!” President Obama blared last week at a campaign rally at a high‐school gym in Ohio.
Every day that the Senate refused to confirm Richard Cordray, his nominee for the new “consumer watchdog” agency created by the Dodd‐Frank financial regulation bill, was another “when millions of Americans were left unprotected.”
So Obama, in a flagrantly unconstitutional gambit, invoked the Recess Appointments Clause to install Cordray, Senate confirmation be damned.
Article II, section 2 of the Constitution provides an exception to the general rule of Senate confirmation, giving the president the power “to fill up all vacancies that may happen during the recess of the Senate,” by granting temporary commissions.
Obama isn’t the first president to invoke that exception where it doesn’t apply, ramming through nominees that the Senate refuses to confirm. But he is the first to do it when the Senate is actually in session.
Of course, the administration says that’s not so: “the Senate is functionally in recess,” according to Obama’s White House Counsel. The “decider” will decide whether the Senate’s in session, thank you very much.
The “pro forma” sessions where a lone senator “gavels in,” adopted by then‐Senate Majority Leader Harry Reid in 2007 to stymie President George W. Bush’s abuse of the recess appointments power, are “a procedural trick,” the White House insists. (Who knew “President Autopen” was such a stickler for formalities?)
But, as law professor Michael Rappaport notes, the Framers “believed it was dangerous for one person to have complete control over appointments.” The Recess Appointments Clause was, “Federalist 67” explains, merely an “auxiliary method” adopted because “it would have been improper to oblige this body to be continually in session.”
That stopgap measure met the needs of an era of horseback travel, part‐time Congresses, and recesses lasting between six and nine months. It wasn’t supposed to let the president do regular end‐runs around the requirement of Senate confirmation.
If Obama’s gambit succeeds, however, it threatens to become the exception that swallows the rule.
Living in Washington, you learn to stomach great gouts of hypocrisy; in this case, though, there’s enough to make you gag. It’s a little much to hear advocates of unrestrained executive power like Bush administration vets John Yoo and David Addington decry the Cordray recess appointment.
“It’s flabbergasting and, to be honest, a little chilling,” said Addington, who in 2004 mused that “We’re one bomb away from getting rid of that obnoxious [FISA] court” restricting the president’s surveillance powers.
But the worst hypocrisy here is Obama’s. “I’ve studied the Constitution as a student, I’ve taught it as a teacher,” he piously intoned in 2009: “I know that we must never, ever, turn our back on its enduring principles for expedience’s sake.”
Yet Bush never fought a war without congressional authorization — as Obama did in Libya. Nor did Bush ever publicly claim the power to assassinate American citizens via drone strike, far from any battlefield. (The memo explaining Obama’s legal rationale for that move is classified — he could tell you, but then he’d have to kill you.)
And deeming the Senate “functionally” in recess was a bridge too far even for Bush. When Bush’s attorneys urged him to do it in 2008, he declined. The Cordray appointment is just the latest instance where 44 has gone even further than 43 in the abuse of executive power.
Employing the royal “We” in an interview last month, Obama declared: “Where Congress is not willing to act, we’re going to go ahead and do it ourselves.” How long will Congress let him get away with it?