In another sign that the White House is placing a big bet on resurgent populism and anti-Wall Street sentiment, the administration is putting renewed rhetorical pressure on Senate Republicans to allow a confirmation vote on Consumer Financial Protection Bureau nominee Richard Cordray, with a likely cloture vote later this week.
But if the White House really wants to make a big issue of this, there’s another option available to Obama: He can threaten a recess appointment of Cordray. That would really call the GOP’s bluff and force the issue.
But Obama seems to have no interest in doing this. Indeed, more broadly, while Republicans deserve the blame for their unprecedented decision to block numerous noncontroversial executive branch appointments, it’s still the case that Obama has only himself to blame for his poor handling of the issue. The power to make recess appointments is the big trump card that presidents hold with regard to these selections, and Obama was very reluctant to use or even threaten recess appointments in the last Congress, and has given up completely in the face of GOP obstruction this year. It’s bad governing, and bad politics.
Just to remind everyone: the Constitution gives the president the power to bypass the Senate and issue recess appointments when Congress is not in session. However, the notion of “recess” is not defined by the Constitution. By custom, everyone has settled on a norm that the president only makes these appointments if the recess lasts longer than three days. And the GOP-controlled House has onstensibly prevented this from happening by techically staying in session itself; the Senate cannot recess for more than three days unless the House does as well. But House Republicans have accomplished this through a procedural gimmick.
Bottom line: Under these circumstances, there’s absolutely no reason for Obama to treat the three day norm as binding. Judicial precedent suggests the courts would likely side with him if he broke with that norm. Indeed, there are several legitimate ways that Obama coud break the stalemate.
If the White House believes that drawing attention to partisan differences over the consumer board is politically useful — and it clearly would be — then a recess appointment for Cordray seems like a terrific idea. A recess appointment under these circumstances would almost certainly mean howls of outrage, and likely court action, by Congressional Republicans. The result? Republicans would be complaining about process, while Obama could simply repeat how important consumer protection against the banks should be — even as Republicans themselves are drawing more attention to the issue. A recess appointment at the next possible opportunity would be a win-win for Barack Obama, and he absolutely should be threatening one right now.
UPDATE: Links with supporting evidence added.