A federal appeals court Friday ruled that President Obama’s appointment of three people to the National Labor Relations Board last January was unconstitutional, determining that Obama had made “recess” appointments last January when the Senate was in fact not in recess.
The ruling by the U.S. Court of Appeals for the D.C. Circuit could have bearing on the appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. Cordray was appointed at the same time, and a separate case challenging his appointment is also wending its way through the courts.
Obama appointed Cordray and the NLRB officials after the Senate did not act on their nominations. Ironically, Obama renominated Cordray Thursday for the position.
White House Press Secretary Jay Carney said the ruling would have no ripple effect and only apply to the case that was considered by the appeals court, suggesting that decisions made by the NLRB since the invalid appointments would stand and Cordray wouldn’t be affected.
He gave no hint what the administration’s next step would be.
President Obama’s recess appointment Wednesday of Richard Cordray to lead the Consumer Financial Protection Bureau may not allow the agency to perform all of its functions, undermining one of Obama’s key rationales for the controversial move.
Under the law, the agency cannot regulate non-banks until a director is confirmed by the Senate.
Some Republicans, including widely respected Sen. Rob Portman of Ohio, are arguing that the law creating the agency very specifically requires that he be confirmed by the Senate – and not appointed without a Senate vote during a recess – before he can begin to regulate non-banks.
If Cordray’s appointment was not necessary to get the agency fully up and running, it supports the argument that a primary motive for the appointment was political. Cordray is said to be eying higher office in Ohio – Obama’s announcement of the appointment in Ohio sounded a lot like a Cordray campaign rally – and Obama has already begun raising money off the appointment.
The need for confirmation is made explicit in Section 1066 of the Dodd-Frank bill, which created the agency.
SEC. 1066. INTERIM AUTHORITY OF THE SECRETARY.
(a) IN GENERAL.—The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011.
According to the Volokh Conspiracy, a conservative legal blog: “section 1011 is a defined term which provides: ‘The Director shall be appointed by the President, by and with the advice and consent of the Senate.'”
But Obama during his Ohio appearance Wednesday asserted that he needed Cordray in place in order for the agency to go after non-bank entities that he thinks are ripping off customers.
Without a director in place, the consumer watchdog agency that we’ve set up doesn’t have all the tools it needs to protect consumers against dishonest mortgage brokers or payday lenders and debt collectors who are taking advantage of consumers.
The appointment has stirred a furious reaction from Republicans, who say the Senate is not in recess and Obama’s “recess appointment” is illegal.
H/T to two of my readers, Moe and srdem65, for letting me know about this.
In a sign of the total collapse of the wall between governing and his reelection campaign, President Obama has begun fundraising off his appointment of Richard Cordray to head the Consumer Financial Protection Bureau, dispatching a money-seeking email the very same day he installed Cordray by recess appointment.
According to a piece in Big Government by Heritage Foundation blogger Rob Bluey, an email sent by the campaign to its vast list masquerades as a petition seeking a show of support for the Cordray appointment. Once recipients sign onto the petition, they are asked to donate up to $2,500.
Cordray’s nomination has sparked an emotional debate which Obama’s fundraisers are clearly hoping to tap into. Republicans have held up Cordray’s nomination, demanding that Obama make changes to the CFPB before they allow his name to a vote. Many of them view the recess appointment as an outrage, believing they have kept the Senate out of recess through a technical maneuver.
Liberals have been adamant that Obama make a stand on Cordray. Their passion – many view the CFPB as the savior and protector of downtrodden citizens formerly at the mercy of Big Bad Banks – must be viewed by the White House as an ideal lever with which to raise money.
The email, written by Obama 2012 Policy Director James Kvaal, is hard edged, attacks the two leading GOP candidates, and seeks to prey on recipients’ fears.
Today the President appointed former Ohio Attorney General Richard Cordray as Director of the Consumer Financial Protection Bureau. For months, Senate Republicans — with Mitt Romney and Rick Santorum right behind them — have fought this bureau every step of the way . . .
We can’t afford to continue allowing Wall Street to write its own rules. But today’s action by the President is already coming under partisan attack, which we expect to intensify in the days to come.
But Mitt Romney apparently doesn’t think consumers deserve any protection at all from predatory lenders and other bad actors. His plan to fix the economy is simply to deregulate it. His proposal for the housing market is to let it “hit the bottom” so that investors can come in and make a quick buck.
The President thinks we need a cop on the beat preventing the reckless behavior that helped cause the financial crisis and so many problems for middle-class families in the first place.
As if to drive home the politicization of the process, Obama announced the Cordray appointment during an appearance Wednesday in Ohio, which along with Florida is perhaps the most coveted swing state in the presidential campaign.
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.
President Obama will ignore Senate objections and appoint Richard Cordray to lead the newly created Consumer Financial Protection Bureau, according to the Associated Press.
Obama will make the appointment even though Republicans have blocked it and the Senate is technically in session.
But the White House has concluded that the “pro forma” session is merely a ruse to keep him from making recess appointments, and that for all practical purposes the Senate is in recess.
The move is certain to create a firestorm – an possibly a court challenge – over the standards governing the separation of powers. It’s the latest demonstration of Obama’s resolve to ignore Congress as much as possible and govern by executive authority.