Fight on the Playground at Recess!

Obama appoints Rich Cordray as head of the CFPB

President Obama is having a really good start to 2012. It began late last year when he put his foot down over the payroll tax cut and unemployment insurance extension that House Republicans threatened to leave town without approving despite the Senate passing it by 89-10. Most people were glad to see that the President had reached critical mass with this hostage taking obstructionist nonsense.

But the first thing Obama did in 2012 was make recess appointments for the Consumer Financial Protection Bureau and the National Labor Relations Board. Why is that a big deal? Presidents make recess appointments all the time. What’s so important about this one? It’s complicated.

A little historical perspective is needed.

The Original 13 Colonies

Recess appointments were a necessity in the early days of the country because Congress could only meet for half the year. Logistics of getting around the thirteen colonies were problematic and time consuming. Making the trip from Georgia or Maine (then North Massachusetts) to the nation’s capitol often took a few of weeks by horseback. Consequently, Representatives and Senators  spent half the year with their constituents in their home colonies and the other half representing them in Congress. When vacancies opened up while Congress was away, it fell to the President to appoint people to those positions in order to conduct the business of the country without consulting the absent Congress. This is laid out in the Constitution in Article II which describes the president’s duties and authorities stating that the President has, “the power to fill up all vacancies that may happen during the recess of the Senate.”

Over the years as travel became less of an issue, Congress convened for longer periods and the recess rule became a way to make controversial appointments to positions without Congressional approval. During the Bush administration, Democrats figured out how to do an end run around recess appointments by holding pro forma sessions in the Senate. Pro forma sessions consist of one member of the Senate showing up and banging the gavel and announcing that the Senate would be in session but no business would be conducted. The Senate would adjourn for a specified period in which there could be no appointments (currently three days). Repeat this process as desired. In essence, the Senate was never really in recess despite the fact that everyone was gone. Theoretically, the Senate could be ‘in session’ indefinitely without anyone being there. Ergo, the President could make no recess appointments.

Republicans, understandably, have continued this practice in their quest to deny the Obama executive branch the authority to accomplish anything at all. Republicans also object to the very existence of the CFPB and the NLRB and starving the agencies would effectively render them powerless. The CFPB cannot function without a director and the NLRB cannot conduct business without a quorum (currently there are only two members left on the five member panel of the NLRB).

The President had an easy out that he could have used and many people thought he would. At the beginning of every year there is a small window where one session officially ends and the next session begins. Previous Presidents have used this tiny window to make appointments with out congressional consideration. Teddy Roosevelt, for example, made 160 cabinet appointments in one afternoon during this window.

Instead, what President Obama has done to counter this nonsense is brilliant. One of the advantages of being a Constitutional scholar is knowing how to interpret it’s meaning and Article II does not define what a ‘recess’ actually is. Nor is there any legal precedent on the matter. So the President quite deliberately made his appointments during one of these pro forma sessions.

This is literally outsmarting the bully on the playground. In a completely Tom Sawyer move, the President has forced the Republicans to whitewash the fence. His appointments challenge the pro forma sessions as unconstitutional effectively saying that the Senate in not conducting the nation’s business actually IS  in recess. If the Republicans don’t like it, the onus is upon them to challenge it. The President drew the line and has dared them to step across it.

Which they likely will. Or rather the first bank that doesn’t like a CFPB regulation likely will. Which means a court will likely have to make the determination regarding the pro forma sessions. They’ll have to look at the wording of Article II to make that determination. This means they will have to define what ‘recess’ actually is and also whether or not a recess appointment only applies to vacancies that happen during a recess. That last point could be problematic since these positions were vacant while Congress was in session. This argument could go all the way to the Supreme Court. But even then, the President has an out. He has the authority to force Congress to adjourn and make his appointments but this isn’t exactly Obama’s style.

If the Republicans want to challenge the appointment of the head of the consumer watchdog agency, they’ll have no political cover and will look like they are defending the interests of the financial institutions rather than the American people. And it  makes the President look like a hero in an election year; something he sorely needed after three years of having the bi-partisan olive branch slapped out of his hand by the party of no. Republicans, predictably, are livid. Not only do they look like the bullies on the playground, but they got chumped by the skinny smart kid with big ears.

Related articles

• Karen K. Harris: Why Obama Has the Right to Appoint Cordray (huffingtonpost.com)
• Cordray’s Appt. Not Unprecedented (abcnews.go.com)
• Op-Ed Contributor: Games and Gimmicks in the Senate (nytimes.com)
• NLRB Nominees to Get Recess Appointments Too (news.firedoglake.com)
• After Advocating Rigging The Courts, Gingrich and Santorum Falsely Attack Obama’s ‘Imperial’ Recess Appointments (thinkprogress.org)