TNR: Cordray's Recess Appointment Sure Doesn't Look Constitutional To Me

[Larry]

If things are disagreeable then they are supposed to be at a standstill. It is just that neither party likes it when they are the ones in power being blocked by the minority party.

Actually, I don't have a problem with it.

Heck, I think that the filibuster is an important part of our system. I would hate to see things change to take away the power of a minority to obstruct something, if they really, passionately, object to it.

I have a problem with the fake filibuster. I have a problem with a party filibustering everything.

I really have a problem with a party filibustering everything, and then claiming that they aren't doing it.

But I absolutely think that the filibuster ought to be a part of the tool box.

[Thiebear]

I don't have a problem with the Recess appointment of the 1 guy.
The other three that were only put forth on December 15th should not have been done so soon. Thats just skipping the entire system.

On the radio they said the Presidents advisors said the Congress had to be out of session for 3 days, they were out for 1. If you can't follow your own rules there is nothing much else to say.

[Predicto]

Kilmer is right - recess appointments are constitutional, but no one knows if this exact move is constitutional or not, and we may never find out. These things are designed to work themselves out in the political arena, not in the courts.

If the GOP wants to take a stand on this, they can try in the court of public opinion. But it won't be easy.

[alexey]

If the GOP stays quiet, Obama gets to hire his guy. If the GOP complains, Obama gets to say that the GOP is against protecting consumers.

[PeterMP]

It may or may not be Constitutional. We will never know because no court will take up the case.

If no court takes up the case, that makes it Constitutional.

A court in refusing to look a the case would essentially be saying this is constitutional (i.e. out of their purvue, which is the Constitution).

[twa]

I would agree with you . . . . but there is one problem. You can't move on to another nominee when the opposing party is set on rejecting ANY nominee not just a particular nominee.

"Republicans have said they are not opposing a particular nominee but rather any nominee, whoever it may be. "

http://www.nytimes.com/2011/06/20/us...pagewanted=all

The Reps took back over the Senate already?

there is supposedly yet another issue with this action violating actual law as well.

Yoo's amusing take
http://www.nationalreview.com/corner...power-john-yoo

http://www.cato-at-liberty.org/playi...n-and-the-law/

Did Obama have the authority to make the Cordray and the NLRB appointments, since the Senate is technically not in recess? And will the president’s shift from bipartisan conciliator to partisan agitator pay off?

My response:
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

[Larry]

The Reps took back over the Senate already?

The reps forgot how to filibuster everything in the world already?

[nonniey]

Looks like Larry and TWA are the only ones identifying the problem in this thread. Despite what many posters are attributing to previous Presidents, no President has made recess appointments when the Senate has not been in recess. Now the Senate in recess may be a sham (invented by the Democrats during Bush's Presidency I might add) but that doesn't matter. Like the article stated, this essentially means any President can make a recess appointment during any weekend under this precedent.

[twa]

The reps forgot how to filibuster everything in the world already?

Don't recall them filibustering him, don't even think he was nominated that long ago

I admit I haven't kept up with him

[Fergasun]

Here's some Constitutional text on the powers of the Executive (found in Article II):

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 seems to me the problem here is that the Senate is saying, "We can take away this Constitutional power of the President by going into recess without calling it "recess"." And actually, it's not going into recess because the House is forcing the Senate to stay in session.

So we have a law, passed by Congress and signed by the President, which calls for a head of the consumer protection agency, yet instead of using the legislative power (funding, repeal of the law, modification of the law); Congress is attempting to use some technicality to prevent the position from being filled. Personally, it seems to me that Congress would be more likely to get smacked around by the Courts for stepping on the Presidential power. Interesting question tho. I doubt the R's have the stones for this case though.

[Thiebear]

Fergasun: Doesn't the Bill say the head of the agency has to be confirmed by the Senate?
Which the Courts would say is the law and thus not followed?

“authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’”

1: There IS someone that can authorize what needs to be done.
2: The new guy still has no authority unless the Treasury Secretary delegates his with each request.

[Burgold]

I guess the other question is could the Senate have called a vote if they wanted to on anything? If there's no one in town and they can't meet, debate, or vote... a rose by any other name, you know.

It's a faux recess and we've decided that recess appointments are legal.

To be frank, I don't like the strategy Obama used here, but I don't think it's unconstitutional given what other President's have done.

[skinsmarydu]

I would agree with you . . . . but there is one problem. You can't move on to another nominee when the opposing party is set on rejecting ANY nominee not just a particular nominee.

"Republicans have said they are not opposing a particular nominee but rather any nominee, whoever it may be. "

http://www.nytimes.com/2011/06/20/us...pagewanted=all

They'll do anything to block anything this president wants to get done. Mitch McConnell actually said that the #1 goal of the GOP is to make sure Obama is a one-term president. Not to do the work of the people who voted them into office, but just to destroy the work of the administration. They're crazy, I tell ya.

[Fergasun]

thiebear,
Well then, that settles it. This guy has no power... or more likely everything he does gets funneled through and signed by Geithner. What's the GOP so afraid of?

[gbear]

Odd thing is with recess appointments, can't those apposed to the appointment simply call a vote on the appointment when back in session? I was under the impression the recess appointment authority was to keep the wheels of the government turning while Congress takes time off. If the vote was something they never got around to before taking off, whether by design or resulting from full schedule, Congress still has the option of actually getting to it should they object so strongly.

On the non legal front, I always thought half of life was just showing up. As for whether it is a recess, were they holding any votes that day? Were they there should they desire to do so? Since recess is defined nowhere I have seen, objecting in the name of a made up rule never written into law seems foolhardy when if they really fealt they were in the right they would vote/filabuster.