Ugh. I don’t know how long I can put up with this before completely dropping out. President Obama today appointed Richard Cordry to head up the new Consumer Financial Protection Bureau (“CFPB”) as well as three members of the National Labor Relations Board on a recess basis. There is a clause in the Constitution which allows the President to make executive appointments which would normally require the advice and consent of the Senate without it when the Senate is in recess.
This piece on the Volokh Conspiracy does a far better job than I could ever do in terms of getting into the legal nitty gritty on the interpretation of the recess appointment clause as well as the procedural aspects of all of this. Suffice it to say that all of these appointments will be litigated.
Mittens Romney called this “Chicago Style” politics. How is that? Look, I get that the GOP hates the CFPB for a variety of reasons: (a) Wall Street hates it, (b) it goes against their anti-regulatory vision, and (c) if it works it could be popular and that popularity could transfer to its backers, the President and Democratic party which got it through Congress. However, the “got it through Congress” is the key. The GOP is opposing his appointment not because Codry is unqualified but because they don’t like the CFPB and they want the President to consent to changes they weren’t able to force when the legislation was pending in Congress. Even with the 60 vote filibuster requirement which has now been imposed by the GOP upon almost all legislation, Democrats still passed the legislation.
Someone should ask Romney the question of whether all recess appointments are “Chicago politics” (which is fatuous) or whether it’s Chicago politics because Obama is fighting back against what some commentators have referred to as a near nullification effort by the GOP with respect to “reform” (really “weakening”) of the CFPB. That’s the constitutional crisis. And it’s not much of one. If Congress refuses to do its job, the President is left the option in the Constitution to make recess appointments. As to whether the Senate is really in recess even though it’s been on vacation for a couple weeks? Check out the Volokh post I linked to above. I am convinced that the President is on procedurally solid ground and that the Senate is in recess. And I’m convinced that there is no crisis.
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