Washington Times:
Obama sets up clash with Congress over recess banking pick
Breaks Democrats’ own rule from Bush administration
Congressional officials said President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau in a move Republican lawmakers said amounted to an unconstitutional power grab.
The president acted just a day after the Senate held a session — a move that breaks with at least three different precedents that said the Senate must be in recess for at least three days. Mr. Obama himself was part of two of those precedents, both during his own time in the Senate and again in 2010 when one of his administration’s top constitutional lawyers made the three-day argument to the Supreme Court.
The appointment in question is former Ohio Attorney General Richard Cordray, whom Mr. Obama tapped to head the CFPB. The board was set up under the new Wall Street regulation bill Democrats powered through in 2010, just before losing their majority in the House.
Using sharp language, congressional Republicans said the Senate considers itself still in session for purposes of recess appointments, and said Mr. Obama’s move is a declaration of battle against Congress.
“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.
GOP House Speaker John A. Boehner called the move “an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department.”
“The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution,” the Ohio Republican said in a statement.
The White House, though, argues Republican senators stonewalled the nominee so long that Mr. Obama had no choice but to circumvent them.
The president is expected to introduce Mr. Cordray during a trip to Ohio Wednesday, and the Associated Press Mr. Obama will call Senate Republicans’ ongoing blockade of his nomination “inexcusable.”
“I refuse to take ‘No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” he will say, according to prepared remarks.
Administration officials told the Associated Press they anticipate the move may be challenged in court.
Mr. Cordray was accompanying the president on a trip to Cleveland, Ohio Wednesday, and briefly spoke to reporters.
He said he would begin work immediately, adding: “We’re going to begin working to expand our program to non-banks, which is an area we haven’t been able to touch until now.”
The Constitution gives the president the power to make appointments when the Senate is not in session and able to confirm them. Traditionally that has been understood to mean when the Senate has adjourned for a recess longer than 10 days, and a Clinton administration legal opinion said a recess must be at least three days.
Mr. Obama’s own top constitutional lawyers affirmed that view in 2010 in another case involving recess appointments. Asked what the standard was for making recess appointments, then-Deputy Solicitor General Neal Katyal told the justices the administration agreed with the three-day rule.
“The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than three days,” Mr. Katyal said.
The three-day rule was also the precedent Mr. Obama and his fellow Democrats followed in 2007 and 2008 when they were trying to block then-President George W. Bush from making recess appointments.
“I am keeping the Senate in pro forma to prevent recess appointments until we get this process back on track,” Senate Majority Leader Harry Reid, Nevada Democrat, said on Nov. 16, 2007, as he announced his strategy of having the Senate convene twice a week for pro forma sessions.
On Wednesday, though, Mr. Reid said he backed the president’s move.
“I support President Obama’s decision to make sure that in these tough economic times, middle-class families in Nevada and across the country will have the advocate they deserve to fight on their behalf against the reckless practices that denied so many their economic security,” he said.
But by abrogating decades of understanding on the recess appointment power, Mr. Obama threatened to spark a full legislative war with Congress.
“Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch,” Mr. McConnell said.
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