Obama’s recess appointment challenge

Congressional Republicans were shocked, shocked, when President Obama circumvented a Senate filibuster by appointing a director for the new Consumer Financial Protection Bureau without the consent of Congress. The appointment of former Ohio Atty. Gen. Richard Cordray did, in fact, push the edge of the constitutional envelope. But it was a rational response to an increasingly gridlocked Congress and a growing willingness among lawmakers to employ procedural tools to stop the executive branch from functioning.

Under Article 2 of the Constitution, major positions in the executive and judicial branches are filled by the president with the “advice and consent” of the Senate. While the Senate is in recess, the president may appoint people to fill vacant positions through the end of that annual session of Congress as well as the next one.

The problem with the Cordray appointment is that when the Senate closed up shop on Tuesday (after conducting exactly 41 seconds worth of business), it adjourned only until Friday. That’s because the Republican-controlled House, using an obscure requirement in the Constitution in an effort to stymie Obama, refused to let it adjourn for more than three days. Although the Constitution doesn’t define what a “recess” is, presidents had not invoked their power to make recess appointments in recent decades unless Congress was on at least a 10-day break.

House Republicans borrowed their tactics from Senate Democrats, who held perfunctory sessions with a skeleton crew of lawmakers to deter President George W. Bush from making recess appointments late in his second term. So neither party has clean hands. More broadly, Obama’s move is an escalation of a separation-of-powers battle that dates back at least three decades, and has gradually intensified to the point at which individual senators now hold up nominees to routine executive branch posts in order to extract concessions on other issues.

That’s the bottom line in Cordray’s case. Senate Republicans have said they don’t object to Cordray leading the new bureau. Instead, they want to force the White House to agree to subject the bureau to congressional budgeting and greater oversight by other banking regulators. Those are legislative disputes, not personnel matters.

The legal questions raised by Cordray’s appointment could ultimately upend any rules the new bureau may adopt for payday lenders and others outside the banking system. So while Obama’s tactic plays well with Democrats, it may not help the people the bureau was designed to protect. Nevertheless, Republicans can’t complain about Obama resorting to extremes when the Senate so dramatically contorts the notion of “advice and consent.”