Thursday, January 5, 2012

A Most Dangerous Precedent

On Wednesday January 4, President Obama made a “recess” appointment of Richard Cordray to be the Director of the Consumer Financial Protection Agency (CFPB).  He also made “recess” appointments of three individuals to the National Labor Relations Board (NLRB). 

The backdrop to the Cordray appointment is that the Senate Republicans had announced that they would block the confirmation of any Presidential nominee to head the CFPB because they objected to the CFPB’s structure and, in their opinion, lack of sufficient Congressional oversight and control of that agency.  The CFPB was established by the Dodd–Frank Wall Street Reform and Consumer Protection Act which was duly enacted into law by means of Congressional passage and Presidential signature.  To make the changes that the Republicans want would require new legislation which the Democratic majority in the Senate will not agree to. 

The President’s nominee to head the CFPB would normally require Senate confirmation to be appointed.  However, Article II, Section 2 of the U.S. Constitution, provides for the ability of the President to make appointments on his own when the Senate is in recess: 

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

It is likely that this clause in the Constitution was intended to allow the President to fill vacancies during the periods between sessions of the Senate which in the early days of the country could last for many months.  In any case, in order to block the President from making recess appointments the Republicans kept the Senate in continuous session even when the Senate was not conducting business by having a member of the Senate, every few days, gavel in and out a pro forma meeting of the Senate that lasted a few seconds or minutes.  The Democrats used a similar tactic when George Bush was President.

In the absence of a Director, the CFPB by law could not regulate non-bank financial institutions.  Similarly, the National Labor Relations Board was down to two members and by court ruling could not conduct business without a quorum of three members. 

On Wednesday January 5 the President addressed the situation by making “recess” appointments of Richard Cordray to head the CFPB and of three individuals to the National Labor Relations Board during a few day break between meetings of the Senate saying that he considered the Senate to be in recess.

In two previous posts (1, 2) I have supported the establishment of the CFPB to ensure that consumers are clearly informed of the costs and risks of financial products (but not to set the terms of such products).  Further, I believe that it is unconscionable for the Republicans to refuse to confirm any candidate, regardless of his/her qualifications, to head a duly established federal agency. I understand that in fact there is little Senate opposition to Mr. Cordray in terms of his personal qualifications.   Nevertheless, I feel that President Obama has acted in a very ill advised manner and is at risk of establishing a very dangerous precedent.

Our Constitutional form of government relies on checks and balances between the various branches of government to prevent any one branch from assuming dictatorial type powers.  One of the important checks and balances is the advice and consent power of the Senate with regard to Presidential appointments.  While I share President Obama’s frustration with some of the tactics of the Republicans in Congress, this does not justify the President’s attempt to breach the Constitutional safeguards limiting Presidential power.  If the precedent that the President is attempting to establish stands, then this and all future Presidents could in effect nullify the Senate’s power of advice and consent with respect to Presidential appointments.  This would represent an enormous increase in the power of the Presidency which office is arguably already the most powerful branch of government.  This action would facilitate the development of an imperial type Presidency.

In addition, by taking this action the President may have actually weakened the CFPB because any action that take it takes the future will be subject to legal challenge on the basis that the Director was not Constitutionally installed.

While the Cordray appointment has been stalled since last July when the President first nominated him, the President had nominated two of the three NLRB candidates (Sharon Block and Richard Griffin) only a few weeks ago and the third NLRB candidate (Terence Flynn) he had not previously nominated at all.  So the President is already attempting to completely bypass the Senate and gut the Senate's Constitutional power of advice and consent.

However frustrated the President may be by his inability to have his nominees confirmed, the solution is not for him to attempt to breach Constitutional safeguards.  The correct remedy is a political one, either to attempt to negotiate a resolution to the dispute or to take the case to the American public to convince the voters to not re-elect the badly behaved members of the Senate.

The President has an obligation to protect the Constitution.  He should not succumb to the frustrations or politics of the moment and attempt to nullify one the important checks and balances that the Constitution affords.  Unless the courts should strike down these appointments, future Presidents - many of whom may hold views inimical to President Obama's - will use the precedent established by President Obama to routinely make federal appointments without Senate approval.  President Obama's actions have weakened our democracy.

I believe that these Presidential appointments will eventually be reviewed by the courts.  I believe that the courts will rule that the Senate is the body that determines whether the Senate is in recess or not and that the President does not have the discretion to make that determination.  In my opinion that would be the correct ruling and the only ruling that would preserve the Constitutional system of checks and balances.


  1. Not a lawyer myself, but at least some lawyers at a conservative blog think it is constitutional:

    I'm inclined to agree that these fake pro-forma sessions, not to mention the fillibuster of hundreds of nominees, were also not envisioned by the founders.

  2. Tell the Republicons to stop blocking appointees We need to adopt the simple majority rule and avoid the shenanigans of corporatists!