But what’s interesting here isn’t simply that Obama is siding with the liberals. It’s that he’s setting a precedent in his fights with Senate Republicans.
Some quick background: Presidents have long had the power to make appointments to fill administration positions whenever Congress is adjourned for more than three days of recess. Yet in the current Congress, Republicans have been intentionally organizing “pro forma” sessions during their breaks so as to avoid recesses from technically taking place. Congress isn’t in town, but Obama can’t make recess appointments either.
Yesterday, a loophole briefly arose. As TPM’s Brian Beutler reported, the 112th Congress was technically switching between sessions, which meant there was a brief flurry of seconds when Congress wasn’t technically in session and Obama could’ve rushed to appoint Cordray — or fill any other vacancies. A Congressional Research Service brief (PDF) notes that Teddy Roosevelt did this way back in 1903, filling 160 recess appointments, mostly military officers, in a few minutes’ time.
Obama didn’t take advantage of that loophole. Instead, the Wall Street Journal reports, White House lawyers have simply concluded that this Republican “pro forma” strategy is irrelevant and that they can recess-appoint Cordray anyway. As a side bonus, recess-appointing Cordray now rather than yesterday means his appointment will last through the end of 2013, rather than through the end of 2012.
Is this move legal? “The crux of the matter here is that the Constitution doesn’t tell us what constitutes a recess,” explains Sarah Binder, a political scientist at George Washington University. The practice of recess appointments has mainly worked off precedent, particularly a 1993 Justice Department memo suggesting that Congress has to be in recess for longer than three days before an appointment can be made. “But there’s no constitutional source to go back to,” says Binder. Either way, Republicans could well take this to court — a route Democrats tried unsuccessfully in 2004 when George W. Bush recess-appointed William Pryor to the 11th Circuit Court of Appeals.
It’s clear, however, why the administration felt it needed to do this. When the CFPB was enacted, as part of the financial-regulation bill, the law stated that a number of its powers — including supervising institutions like payday lenders and credit-reporting agencies — could be fully carried out only by a full director confirmed by the Senate. An acting director, which is what Cordray was, couldn’t cut it. In December, the National Economic Council declared in a report (PDF) that the agency had been “hamstrung” without a full director. Yet Senate Republicans have insisted that no director can get confirmed until the agency is fundamentally revamped.
Overall, Obama has been significantly less aggressive in recess appointments than his predecessors — to date, he’s made just 29 such appointments, compared with 171 for George W. Bush and 139 for Bill Clinton.
Still, those numbers aren’t likely to placate congressional Republicans. Here, for instance, is House Speaker John Boehner’s spokesman on the move: “This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department. The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution.”