As I expected, Obama is going to go for it: In his speech today in Ohio, he will announce a recess appointment for Richard Cordray to head the Consumer Financial Protection Bureau.
The bold move — which represents a declaration of executive power Obama had been uncomfortable with before — comes after Republicans had stalled Obama’s pick with a procedural move built around “pro forma” sessions designed to make recess appointments impossible.
The GOP tactic essentially prevented a new government agency created by the White House and Congress from getting up and running on behalf of the American people. And Obama will argue today that the GOP’s obstructionism is harming consumers and middle class families, leaving him with no choice but to employ the recess appointment tactic.
Mitch McConnell is already denouncing the move as “unprecedented,” arguing that it represents a “sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer.”
But a White House official tells me that the administration will rebut this argument by pointing out that Bush administration attorneys also denounced the “pro forma” tactic as a sham designed to prevent the President from exercising his constitutional right to make such appointments.
In an Op ed published in the Post in 2010, former Bush legal counsel Steven Bradbury excoriated Senate Dems for using the “pro forma” tactic as part of a complex deal with Senate Republicans. Senate GOPers agreed to approve a raft of Obama nominees in exchange for Senate Dems agreeing to hold the pro forma sessions to block an Obama nominee Republicans opposed.
Bradbury sharply denounced the sessions as “phony,” arguing: “They serve but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.” He urged the President to call the Senate’s bluff in order to avoid more “gridlock.”
While this shows that Senate Dems also used the “pro forma” tactic, it also allows the White House to argue that even Bush’s lawyers see it as a sham and agree that Obama has the power to make such appointments.
More broadly, the politics of the move are very interesting. Obama’s decision to do this in such a high profile way may swing the spotlight back towards his ongoing push for the middle class, which the White House hopes to contrast with ongoing GOP primary infighting. The outcry from Republicans will draw more attention to their role as defenders of financial institutions against consumers. In keeping with the new “we can’t wait” for Congress strategy, Obama seems determined to demonstrate a willingness to take whatever steps are necessary to circumvent it and to exercise power unilaterally on behalf of the economy and the middle class.
In a sense, the move represents a kind of final break with the illusion — to the degree that it still exists at all — that any kind of bipartisan compromise with Republicans remains possible. All bets are off.