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.