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Steve Sebelius
You need a recess to make recess appointments
Let's get a few things straight.
First, the Consumer Financial Protection Bureau is a legitimate agency, created under the Dodd-Frank financial reform bill. (Just because it passed under largely party-line votes doesn't negate its legitimacy -- there's no asterisk in the Constitution that says party-line votes don't count.)
Second, Richard Cordray, the man nominated by President Barack Obama to head the agency, is well qualified, a fact acknowledged by Republicans and Democrats alike.
Third, the bureau under Cordray will provide much-needed relief for consumers who are currently at the mercy of large financial corporations.
Fourth, the Republican promise to filibuster Cordray's nomination until Democrats agree to changes in the law -- as I wrote in a Dec. 11 column -- is an unprecedented constitutional affront and a dangerous escalation of Washington's bitter partisanship.
But Obama's appointment of Cordray using his "recess appointment" powers is an equally dangerous, equally unprecedented act. Why? Well, the Senate is technically not in "recess." Thus, no recess appointments.
During the closing days of the George W. Bush administration, Senate Majority Leader Harry Reid began holding so-called pro forma sessions when the Senate would typically be on vacation. He staged these short sessions -- in which a senator gavels in and gavels out, usually in about 30 seconds -- to deny Bush the chance to make recess appointments.
Back in 2007, Reid called recess appointments of controversial nominees "an end run around the Senate and the Constitution," although they are clearly permitted in the text. In 2008, he said "we don't let [Bush] have recess appointments because they are mischievous." And in 2005, Reid said the recess appointment of John Bolton as U.N. ambassador was an "abuse of power."
On Wednesday, however, Reid said he supported Obama's "recess" appointment, accusing Republicans of -- where have we heard this before? -- trying to make an end run around the law. The urgency of helping consumers justifies the move, Reid implied in a statement.
White House Counsel Kathryn Ruemmler contends the pro forma sessions of the Senate are a gimmick designed to render a constitutional power of the president obsolete. Former Justice Department official Steven Bradbury (who was denied a recess appointment thanks to pro forma sessions organized by Reid) quotes former Attorney General Henry Daugherty saying "to give the word recess a technical and not practical construction is to disregard substance for form."
But whenever I hear somebody appeal to "substance" over "form," in matters of law, I get the sense somebody's trying to put one over on me.
Scholars who support Obama's position say the question turns on the idea that the Senate is in "recess" when it is not organized for business and capable of performing its traditional "advice and consent" function. The Senate resolution calling for pro forma sessions frankly acknowledges that no business will be conducted, and thus the Senate can't advise or consent, so it's practically in recess.
But that's a risky interpretation. What's to stop Obama (or a future president) from saying that partisan gridlock has so crippled the Senate that it's incapable of giving advice and consent in general? Could not that be used as justification to make recess appointments all the time?
By making a recess appointment when there's no recess, Obama has surrendered the moral and constitutional high ground. By failing to object, Reid shows not only intellectual dishonesty but also a shocking willingness to surrender an important prerogative of the legislative branch. And just because it makes good politics -- can you imagine the mileage Democrats could get from a Republican lawsuit asserting the right to block consumer protections? -- doesn't mean it's a good idea.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 387-5276 or ssebelius@ reviewjournal.com.
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The pay day loan companies are outside military bases, their activities, along with rent to own places mire the troops in debt. This hurts troop moral and jeopardizes national defence. (Since we are at war.) Therefore Mr Corduroy had to be appointed. Rush Limburger should be sealed in a 55 gallon drum (with 4 half inch in diameter air holes drilled in it) and shipped to Cuba's Gitmo on the Schooner Tiki.
Opinion1, did you not read the other Opinion piece, Recess Appointments? It was noted there that the Democrat Party pulled the same thing on Bush in 2007. The pro forma sessions kept Bush from "recess" apointments because Congress was in session. The same applies here. The appointment is null and void because Congress was in a pro forma session.
Do you Obama cares about anyone except himself? He will do anything to get reelected. What he is doing is sneaky. No way on earth would any decent Nevadan want to vote for this guy Obama..
@mrs ed. It wont be Obamba that jails people thanks to the recently approved National Defense Appropriations Act, with Amendment 1031. Most likely, Rush and O will be jailed together. Silly congresscriters handed over all power to the military. Silly silly congresscriters.
How, Mrs.SpecialEd, will Richard Cordray impact any WAR? You can lead a liberal to water, but you can't stop them from dumping a case of Kool-Aid into it.
This is necessary because we are at WAR. Since we will also go to WAR with IRAN shortly, people should get used to emergency powers. Obama should jail people like Rush Limburger under the new defence bill.
Steve, you can't compare pro forma sessions with grid lock. That's absurd. That's why we have courts to draw distinctions. Pro forma sessions were by design created to allow members of congress to draw other members back into session when a quorum isn't met. The Senate hasn't had a quorum in over 10 days. They are in recess.
MSchaffer, nice try. Fail. The hypocrisy of the fringe left cannot be glossed over by misdirection.
Sorry. Typo. 911- Dang glasses.
Should someone call 811? Steve must have been kidnapped or suffered a rare bout of common sense.