Steve Sebelius wrote a nice piece – from the left, no less – which correctly points out the tremendous danger of President Obama’s completely lawless non-recess recess appointment of Richard Cordray to be the Director of the newly created Consumer Financial Protection Bureau. But then Sebelius tries to find a Constitutional fig leaf for the President to still ignore the Senate’s rejection of Cordray by citing the “extraordinary circumstances” clause of Article 2, Section 3.
It just doesn’t – nor should it – work that way.
Such a secondary option would still do violence to the Constitution – certainly its spirit. The bottom line is that the Senate rejected Cordray, as is their right. That’s one of the checks on the President’s power. At that point, his ONLY Constitutionally legitimate option is to nominate another person for that post, perhaps trying this time for one who can gain the necessary support from the States’ various elected representatives.
And even if it was Constitutionally legitimate, Cordray’s taking power is still not a legally legitimate under the statute which created the CFPB in the first place. As Professor Zywicki points out at the Volokh Conspiracy:
Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank. Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”
This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.
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And are these truly “extraordinary circumstances”? Please – this wasn’t an invasion or an attack necessitating a swift declaration of war. Somehow the Republic has survived for 235 years without a “Director of the Consumer Financial Protection Bureau”. None of this was necessary (or even affordable), much less “extraordinary.” It was purely a political stunt.
Not only was the President’s action lawless, it was gratuitously lawless – and that’s really what’s so deeply frightening about the whole episode.
So the “gratuitous lawlessness” of making a legally creative, although certainly questionable, recess appointment is worse than nullification of law by filibuster in the Senate?
Let us not forget that the Consumer Financial Protection Bureau is the law of the land. I find it equally gratuitously lawless for a minority of senators to filibuster a presidential nomination to the end of trying to nullify a duly enacted law. Senate Republicans under their leader, Sen. Mitch McConnell, made no secret of the fact that they intended to block not just Cordray’s nomination to the CFPB but ANY nomination until their demanded changes to CFPB were passed into law. This is nothing more than hostage-taking by a minority of senators.
A slight(er) bone to pick with terminology, the Senate really hasn’t rejected Cordray in the traditional sense; it simply failed to invoke cloture, an artificial supermajority threshold that many scholars have pointed out has lead to increasing amounts of dysfunction in the Senate. Sure, the popular media simplifies it to a rejection of the actual nomination, and sure the end effect is the same (Cordray is not appointed), but it’s simply not the same thing. Frankly, it would be nice if the Senate would ditch the 60-vote cloture rule and return to its practice as a simple majority body, as it was during at least its first 100 years of existence.
Additionally, as some commenters to the Zywicki post have pointed out, the use of the defined term requiring appointment after advice and consent from the Senate is used many places elsewhere in federal law and has universally been interpreted to include recess appointments. Otherwise all recess appointees could be hamstrung through legislation, and certainly that would upset the constitutional grant of power for the president to make recess appointments. It seems it would be akin to a legislative veto, which the Court struck down in INS v. Chadha.
Finally, some legal scholars (including another contributor at Volokh Conspiracy) reach the opposite conclusion regarding recess appointments.
I’m certain the courts will examine this issue. What is more interesting is whether the Supreme Court will wade into this issue or simply declare that it won’t get involved in a political dispute between the Congress and president.
But before we go off calling this “gratuitous lawlessness,” let’s remember that Republicans in the Senate are guilty of very much the same thing when they attempt to nullify a law by threatening to debate something to death.
Word.
So Orrin, what will REALLY be done? How will this wrong be righted? You know and I know…NOTHING. Not a damn thing will be done about this. How come the Republicans have not come back in full session to address the matter if it so egregious? How come we’ve not come full stop and made the issue the most important issue of the day? Republicans complain and whine, but they don’t ever really step up to the plate in a serious matter like this. Even Glen Beck stated yesterday that if this was a really “gratuitous lawlessness” there would have already been a hearing. Instead, Congress enjoys its recess and whines from afar. Like most politics of the day…lots of words and no results.
Sorry, Sean – I stand by it. I’m not going to defend endless obstructionism for its own sake (neither party has clean hands with this regard), but the Senate is exercising their “advice and consent roll” robustly against an unnecessary agency at a time when we’re broke (and then some). If it were a Supreme Court Justice nominee, I might be more sympathetic to the President trying to fill the vacancy, but not this. Hence the “gratuitous” nature of the fight he picked.
I wouldn’t want to get rid of the filibuster completely, but I do agree using it for every last thing is absurd. I’d keep it in place, but require a real, no kidding, break out the Teenage Mutant Ninja Turtle sleeping bags on the Senate floor filibuster.
Eric, the problem with having hearings is that it just looks like yet another political stunt, no matter how legitimate it might be in fact. It would do for President Obama what Clinton’s impeachment proceedings did for him, sad to say. That doesn’t mean they still shouldn’t push it, but let’s be honest – courage is in pretty short supply in Washington.
So…Republicans will bitch, but they won’t back it up… Good thing they are called the Grand Ol’ Party…bitching, complaining, pity party. You’re right…courage must be under embargo in Washington.