Obama's Assault on Separation of Powers

The far-reaching implications of Richard Cordray's unconstitutional appointment.

President Barack Obama has abused his constitutional powers once again. This time, Obama got so frustrated with the way in which the Senate was exercising its constitutional "advice and consent" authority regarding some of his nominations that he leaped ahead to make four so-called "recess" appointments, even though the Senate did not deem itself to be in recess at the time. In accordance with precedents accepted by congressional leaders of both parties and followed during the previous Republican administration, the Senate has determined that by holding “pro forma” sessions every three days it is not in recess. Nevertheless, Obama disregarded the Senate's constitutional right to make its own rules on when it is in session, and its "advice and consent" power over presidential nominations, by unilaterally appointing former Ohio Attorney General Richard Cordray as director of the new controversial Consumer Financial Protection Bureau (CFPB). He also filled three National Labor Relations Board (NLRB) vacancies.

Obama, running a demonize-Congress re-election campaign, was in full campaign mode when he rubbed his "recess" appointment of Cordray in Congress's face last week. He announced the appointment, with Cordray standing at his side, at a campaign-style rally in Cordray's home state of Ohio.

“I refuse to take ‘no’ for an answer,” Mr. Obama said, rejecting in essence the fundamental constitutional principle of checks and balances that sometimes means the Congress will say no to the president. Obama did not want to take "no" for an answer with regard to Cordray for one simple reason. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, which established the powerful Consumer Financial Protection Bureau, the bureau could not start exercising its considerable powers and issuing regulations until a director was actually in place. And there is nothing that excites this president more than another regulatory agency clamping down on even more sectors of the free market economy.

Indeed, chomping at the bit to get started issuing business-hobbling regulations upon his illegal appointment, Cordray warned: “We’re going to begin working to expand our program to nonbanks, which is an area we haven’t been able to touch before now.”

In order to install Cordray right away and kick-start the new consumer bureau into operation, as well as fill the NLRB vacancies, Obama relied on the presidential recess appointment power under Article II of the Constitution (Section 2, Clause 3), which states:

The President shall have 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.

The Obama White House legal team's lame defense for Obama's imperious action is that the Senate's pro-forma sessions were merely dodges to thwart his recess appointment power. This circular reasoning, shared by the left-wing Harvard Law School Professor Laurence Tribe, presupposes that Obama has the authority to determine when the Senate is or is not in recess as opposed to the Senate itself - a blatant assault on the separation of powers.

This is a country of laws, not unilateral presidential fiat. Under the Constitution, each house of Congress makes its own rules for how it conducts its proceedings, which inherently includes its own determination when it is in session and when it is in recess. Not an impatient president. Not the White House legal team. Not the Department of Justice.

Also, in a country governed by the rule of law, precedents should matter. Democrats had initiated the "pro-forma" session procedure to prevent recess appointments during the administration of George W. Bush, which the Bush administration honored. The same procedure was being followed during the Obama administration with the concurrence of the congressional leadership of both parties.

It is highly likely that, if asked, Attorney General Eric Holder gave Obama the green light to do whatever he wanted, without bothering to consult prior Justice Department opinions or the text of the Constitution. However, as all eight Republicans on the Senate Judiciary Committee reminded Holder in a letter inquiring whether he advised on the four questionable "recess" appointments, former Department of Justice opinions have questioned the power of the president to deem the Senate as being in recess under the Constitution if it has not adjourned for more than three days. In fact, Attorney General Daugherty declared in 1921 that, while an appointment made during a 29-day intrasession recess was constitutional, “an adjournment for 5 or even 10 days [cannot] be said to constitute the recess intended by the Constitution.” More recent pronouncements on the issue, including during the Clinton administration, have asserted that the Recess Clause applies to adjournments in excess of three days.

It's time that Obama, who once taught constitutional law, and Professor Tribe for that matter, open their copies of the Constitution gathering dust on their desks and turn to Article I, which defines the powers of the legislative branch. I'll make it even simpler for them. Here are the pertinent provisions:

Art. I, Section 5:

Clause 1: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide."

Clause 2: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

Clause 4: "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."

Aside from the constitutional obstacle to Obama's questionable "recess" appointments, the Cordray appointment has an additional legal hurdle to climb - the text of the Dodd-Frank Act itself. Section 1066 states that no authority to operate is transferred from the Secretary of the Treasury to the new bureau until its director has been "confirmed by the Senate." Section 1011 states that "the Director shall be appointed by the President, by and with the advice and consent of the Senate."

As Mark A. Calabria of the Cato Institute explains:

The Dodd-Frank Act is very clear, even a law professor can probably understand this section, that authorities under the Act remain with the Treasury Secretary until the Director is "confirmed by the Senate." A recess appointment is not a Senate confirmation.

Well, maybe not all law professors. In his New York Times op-ed article titled "Games and Gimmicks in the Senate," Professor Tribe argued that Obama acted properly in order to carry out his obligation under Article II of the Constitution to “take care that the laws be faithfully executed.”

[T]his duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes... the C.F.P.B. cannot legally exercise its full statutory authority, including the regulation of credit reporting agencies and payday lenders, without a director.

Tribe needs to read more carefully the statute that established the CFPB. If the president is truly taking care that this law be "faithfully executed," he has to comply with all of its provisions. As noted above, the Dodd-Frank Act requires that the director be "confirmed by the Senate" in order for the CFPB to assume any powers.

There is good reason for this special caution. Once properly confirmed, the director of the Consumer Financial Protection Bureau will have enormous powers. His agency will regulate the offering and provision of consumer financial products or services under the federal consumer financial laws, which will cover everything from providers of mortgages, education loans and payday loans to insured depository institutions and credit unions. The agency will be under the wing of the Federal Reserve, with little accountability to Congress and not subject to annual congressional appropriations decisions. Even the Federal Reserve, which is itself an opaque institution, will not be able to interfere with the director's actions. However, it is the Federal Reserve earnings that will be used to fund the federal consumer bureau.

It makes sense, therefore, for Congress to have reinforced the active role it is to play in vetting and approving the director, which in turn triggers the full operation of the bureau. Thus, he must be "confirmed by the Senate" - no carve-out for recess appointments by the president.

"We can't just wait for Congress," Obama has said. Americans concerned about preserving our constitutional republic of checks and balances and separation of powers can hardly wait for the voters to send Obama back to Chicago for a long-deserved permanent recess from the presidency.

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