Obama: Did his appointments violate the Constitution?

The President's recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board have raised the ire of Republicans, who say the Senate was not really in recess.

Every president swears an oath to uphold and defend the Constitution, said the Washington Examiner in an editorial, but President Obama “is thumbing his nose at it.” When the Senate is in recess, the Constitution lets the president fill vital jobs by so-called “recess appointments,” bypassing Senate consent. Obama used that power last week to name Richard Cordray head of the new Consumer Financial Protection Bureau, as well as to fill three seats at the National Labor Relations Board. The only problem, said Edwin Meese and Todd Gaziano in The Washington Post, is that the Senate was in session. Using a parliamentary procedure devised by Democrats to block the last President Bush’s recess appointments, Republicans have been holding minute-long “pro forma” Senate sessions every four days to keep the Senate, technically, in business. Obama unilaterally decided that the Senate was in recess anyway. So in what House Speaker John Boehner rightly called “an extraordinary and unprecedented power grab,” the president simply went ahead and made his appointments—a “tyrannical usurpation of power” that will surely be challenged in court.

Republicans are the ones defying the Constitution, said Ezra Klein in WashingtonPost.com. Most of them have admitted that Cordray, Ohio’s former attorney general, is well qualified to run the new consumer agency. Their only goal in using filibusters to block his nomination, and those of the NLRB nominees, was to keep those agencies from functioning as intended by law—to crack down on banks that cheat consumers and on employers who abuse workers. As Obama put it last week, “When Congress refuses to act—in a way that hurts our economy and puts people at risk—I have an obligation as president to do what I can without them.” Obama’s on firm legal ground here, said Harvard University constitutional law professor Laurence Tribe in The New York Times. Senate Republicans are distorting their “advice and consent” role by refusing to vote on presidential appointments, so as to paralyze entire agencies. If these appointments are challenged in court, the case “ought to be a slam dunk” for the White House.

Quite the opposite, said Stanford University constitutional law professor Michael McConnell in The Wall Street Journal. The Constitution plainly states that both houses of Congress must agree to an adjournment, and neither the Senate nor the House did. So the Senate was legally in session. And even if Obama were to win in court, Democrats would one day regret this president’s imperial arrogance. He’s opened the door to some future Republican president ignoring “constitutional niceties” and governing by executive fiat. Beware: “Precedents created by one administration will be exploited by the next.”

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The White House would actually welcome a court battle on this issue, said Jonathan Chait in NYMag.com, because it plays right into its election strategy for 2012. The Consumer Financial Protection Bureau was a centerpiece of the popular Wall Street reforms that Democrats passed in 2010. Obama would love voters to see him fighting to defend middle-class consumers from the predations of big business, and the Republican Party “standing in the way.” Finally, Obama is acting “like a partisan,” said Robert Kuttner in AmericanProspect.org, and standing up to GOP obstructionism. His liberal base is thrilled—and as for conservatives, banks, and Wall Street, they couldn’t hate him any more than they already do. “In the spirit of Franklin Roosevelt, he might as well earn that hatred.”

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