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Obama was Right to Appoint Cordray

by Keith Koffler on January 5, 2012, 9:50 am

President Obama did not exceed his powers as president Wednesday when he made a recess appointment of Richard Cordray to lead the Consumer Financial Protection Bureau.

There are many actions Obama has taken during his presidency that stir grave concern about presidential overreach and how Obama might use his executive powers if he is reelected. Wednesday’s appointment was not one of them.

The Senate claims it is in session. But the Senate is not in session. It is pretending to be in session merely for the purpose of thwarting a Constitutionally-prescribed power of the president.

Based on the long accepted definition of the “Recess Appointments Clause” of the Constitution, the president has the right to make appointments without the “consent” of the Senate if the vacancy exists when the Senate is in recess.

The Senate has been “convening” every three days to for about 15 seconds to technically keep itself out of recess. A recess, according to the currently accepted legal definition, must last at least three days.

This cuteness was actually begun by the Democrats as a way to prevent George W. Bush from making recess appointments. The problem is, the maneuver is so easy to accomplish that it could EFFECTIVELY ELIMINATE RECESSES ALTOGETHER, thereby eviscerating a right outlined in the Constitution for the president make recess appointements.

Obama, by appointing Cordray, was correct to challenge the Constitutionality of the Senate’s actions. The Senate is engaged in a highly questionable tactic, and Obama is by no means exceeding his power by challenging it.

In case you are wondering whether somehow the Senate might actually be in session, here is one of those “sessions.”

That was the full session.

Now, here’s where my opinion gets a little tricky. This is the the Recess Appointments Clause:

The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

To me, and to some legal scholars, this clearly refers to vacancies that open up while the Senate is in recess. The intent, in my view, was to make sure the government could continue to govern while the Senate was out town for nine months, like it would be during the 1700s. The intent was not to let the president make an appointment when Congress leaves for a couple of weeks in August or to go roast its hams for Christmas.

But the precedent that prevails was established by a ruling by the attorney general in 1823 which defined “happen” as “happen to exist” rather than the more natural meaning of the word, “happen to occur.” Since then, it has been held – incorrectly, I think – that any vacancy that exists while Congress is in recess can be filled unilaterally by the president. Therefore Obama and other president have routinely made recess appointments to fill vacancies that exist while Congress is in recess, but which might have opened up while Congress was in session.

Precedent is something given great weight in Constitutional matters, and I don’t feel I can opine easily on whether nearly 200 years of legal custom should be overturned.

But I can say with conviction, as even the former chief of Bush’s Office of Legal Counsel and another Bush OLC official have said, that Obama under the widely accepted interpretation of the law is correct, and the Senate is not.

H/T to The Volokh Conspiracy, the conservative legal blog where I found some of the information for this piece.

{ 27 comments }

One Mad Woman January 5, 2012 at 9:54 am

“The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.”

That needs to be changed!!!

Keith Koffler January 5, 2012 at 9:58 am

It does.

sportinlife10 January 5, 2012 at 10:01 am

…gutsball to research that and print it, Keith.

Moe January 5, 2012 at 10:07 am

The Dodd-Frank legislation which created the position Cordray will fill specifically requires Senate confirmation. A recess appointment is not confirmation under any scenario.

srdem65 January 5, 2012 at 10:20 am

That was my understanding of the Dodd-Frank law, too. If it is true and can be enforced, then the appointment is moot.

OT: not much
Curious that MrCorday would even want this position knowing that his appointment would be a point of contention.

The agenda of this administration is just baffling and appears to be set against the many States and institutions. Suing States for enforcing immigration laws , calling mandatory IDs for voting rights “racist”, the Fast&Furious tragedy, and the myriad of “loans” given to select industries is something new and fearsome.

Moe January 5, 2012 at 10:20 am
LadyLiberty1885 January 5, 2012 at 10:32 am

Exactly.
Also, see this:
http://volokh.com/2012/01/04/recess-appointment-of-richard-cordray-despite-pro-forma-sessions/

Regardless of whether or not he can legally make these appointments, the masses see it as an end run and abuse of power and a tactic that Obama touted he would not employ. See also:
http://www.powerlineblog.com/archives/2012/01/that-was-then-this-is-now.php?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+powerlineblog%2Flivefeed+%28Power+Line%29

Keith Koffler January 5, 2012 at 11:27 am

Thanks for letting me know about this.

DeniseVB January 5, 2012 at 10:09 am

So why have a pro forma session at all ?

Susan January 5, 2012 at 10:24 am

Respectfully disagree. His recess appointments violate the customs and principles that have been in effect for more than 100 years. Congress is not in recess unless both the Senate and the House agree. The House did not give consent to adjourn…

Article I. Section 5. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

I will take Mark Levin’s interpretation of the Constitution over a bunch of eggheads from California or leftist Bush appointees. Funny how the Obama regime blames Bush for all our problems, but they don’t have a problem using the opinion of a “former chief of Bush’s Office of Legal Counsel” to condone their unconstitutional acts.

Star January 5, 2012 at 11:01 am

Good pt.

Lizzy January 5, 2012 at 11:04 am

It’s because Obama does not feel rules apply to him and the Constitution is an annoyance he has chosen to ignore entirely. This is
a slippery slope and he loves it and we should beware because with
Holder there are no checks and balances and he can get away with
anything and does.

Keith Koffler January 5, 2012 at 8:56 pm

Fair enough, Susan. Good point on selective use by Obama of Bush aides.

Robin H January 5, 2012 at 10:46 am

Sorry, I think it stinks. It’s the same as saying it’s okay because every one else is doing it too. It does need to be challenged. If the House says its in session than it is. Yes, it’s a formality, but so what? Most of the way the Congress operates is formality.

Tom Addesa January 5, 2012 at 10:53 am

Re. the recess appointment of Richard Cordray . . . GIVE ‘EM HELL, BARRY!

Star January 5, 2012 at 1:06 pm

He’s giving the people who hired him hell, why stop there…?

Lizzy January 5, 2012 at 11:00 am

Well might this be a very short appointment very much like the ‘sessions’?
Because unless the GOP form a circular firing squad won’t he be gone in the
next administration that would be a new President a real one.

Susan January 5, 2012 at 11:18 am

This man, acting as an instrument of Obama’s regulatory czar Cass Sunstein, can do a lot of damage between now and 21 January 2013. Repeal of Obamacare is very important, but so is the repeal of Dodd-Frank. The CFPB acts outside of the control of congress. The Federal Reserve controls the funding for this bureau and last I heard they are not a governmental agency. Totally unconstitutional and the main reason why I despise Scott Brown. He voted for it.

Lizzy January 5, 2012 at 11:46 am

Perhaps doing a lot of damage is why Obama made another end run?
He can’t waste time he’s got a country to ruin!

Fran January 6, 2012 at 1:28 pm

Bingo

Keith Koffler January 5, 2012 at 8:58 pm

CFPB is a new independent fiefdom. It will run amuck.

Just2old January 5, 2012 at 11:14 am

Another example of the administration ignoring this “messy democracy”. I hope that the majority of thinking Americans see this as another example of them cramming another thing down our throats. We know what happened the last time we had that perception….Nov 2010 mid-term election.

We should start our own “can’t wait” campaign….we can’t wait until Nov to fire these thugs.

Mr. T. January 5, 2012 at 11:19 am

Once again, if GW had done this, we’d be hearing cries from the MSM of “dictatorship” and “lawlessness” and “banana republic.” Where’s the outrage?

That’s right, I forgot…we have a Democrat in office.

William January 5, 2012 at 11:31 am

There’s a bigger sticking point here that must be addressed. The very end of the recess appointments clause reads, “which shall expire at the end of their next session.” Since the Senate is holding pro forma sessions every third day, this would seem to me to indicate that Cordray must be re-appointed every third day. Maybe someone with a better legal background could address this.

Robin H January 5, 2012 at 11:54 am

Good point, but if the WH doesn’t think there really is a pro forma session happening, it’s not going to think he needs to be reappointed.

Keith Koffler January 5, 2012 at 9:00 pm

As I understand it everyone takes it to mean until the next Congress is seated in January 2013.

Knothead January 5, 2012 at 11:24 pm

My question is, when did it matter what the law or Constitution allows to Mr. Obama?
“Arrogance is not a noble trait”
Ken Seymour c.2012