History lesson time!
Today, the GOP is losing its collective shit over President Obama making a recess appointment to the Consumer Financial Protection Bureau. He chose former Ohio attorney general Richard Cordray. Cordray, besides being a five-time Jeopardy champ, took on Bank of America and AIG as Ohio’s attorney general, and was endorsed by Elizabeth Warren to lead the CFPB. The attorneys general of other states also support his nomination.
As with anything else Obama wishes to put forth (besides kicking the door open to indefinite detention of Americans), the GOP said no. Since July, Republicans in the Senate have refused to consider his nomination because they hate Dodd-Frank. Seriously.
But Obama kicked a hornet’s nest by appointing Cordray during the Senate’s recess that is not technically, actually a recess. By holding pro-forma sessions, Senate Republicans allege the Senate has not recessed, thereby circumventing the requirement that the Senate approve nominations by the president. A pro-forma session does not require the Senate to meet in any meaningful way - essentially, one senator can bang the gavel, call the Senate to order, and then declare it in recess.
Brian Beutler has an interesting take on why Obama chose to challenge this at Talking Points Memo:
It’s customary for Presidents to heed this defensive tactic. But there’s nothing that says they have to. And Obama concluded he could move ahead. According to the Wall Street Journal the administration’s own attorneys don’t think they do — the Senate’s “pro forma” sessions are meaningless and Obama retains the Constitutional right to recess appoint whomever he wants until session begins in earnest.
This creates a significant new precedent — a bold power play in the face of an unprecedented act of GOP obstruction, but also something to which Obama (and Democrats more generally) have been pretty averse. Given that aversion, it’s hard to figure why Obama would choose to create a new precedent rather than avail himself of an existing one — unless you imagine he’s daring the GOP to make a big stink about it, and thus loudly side with Wall Street against him and middle-class consumers. It’s a safe bet that’s part of his thinking.
Because of GOP obstructionism, Obama has made a paltry 28 recess appointments in his entire term. Compare that with President Ronald Reagan’s 240 recess appointments, President George H. W. Bush’s 77 recess appointments, President Bill Clinton’s 140 recess appointments, and George W. Bush’s 171 appointments. So recess appointments have been done.
Former legal advisers to President George W. Bush agree Obama is in the right, and wrote of pro-forma sessions in 2010:
"The Senate cannot constitutionally thwart the president’s recess appointment power through pro forma sessions. Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not ‘in session for the appointment of officers.’
The Senate Judiciary Committee recognized that a “Recess of the Senate” occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot ‘participate as a body in making appointments.’
This practice will inevitably become the standard operating procedure, and the recess appointment power could become a virtual dead letter - undermining what the Founders viewed as an essential tool for the effective functioning of our government.”
In summary, there’s nothing that says Obama can’t do it, and precedent appears to suggest he can make the appointment since the Senate cannot meet to confirm an appointment. He’s only made 28 appointments in recess. He appointed someone who was blocked from taking office for several months because Republicans want to eliminate the office he would assume. And yet, Mitch McConnell calls the president arrogant, and Judson Phillips of Tea Party Nation issues this (metaphorical) call to arms:
Obama is acting like a dictator because he is not getting his way. The danger for the country is that no one is standing up to him. The one thing we have always learned about dictators and bullies is that someone must stand up to them and must do it early. When people do not stand up to dictators they keep grabbing more and more power until it is too late and impossible to stand up to them. We must stand up, while we still can.
No one is standing up to him?! Have you seen the gridlock in Washington DC? When the GOP demands something, Obama has bent over backwards time and time again to “negotiate” - invariably crumbling in the process. Debt ceiling and health care reform anyone? If Obama were a dictator, Cordray would have been appointed, we might have had a public option, he wouldn’t have cared what the GOP thought about the debt ceiling or tax cuts, etc…
Remember this whole repeal tax cuts for the rich thing that happened this summer? You know, that didn’t happen? I’ll break it down for you:
If Obama’s a dictator, then what the hell does that make the reactionaries in the GOP?