Barack Obama, Department of Justice, Election 2012, Politics

Recess Appointments: How Do You Stop A Legal Sham?

It’ll take some time before a court rules on the legality of Barack Obama’s recess appointment of Richard Cordray to the Consumer Financial Protection Bureau. In case you haven’t been paying attention, Obama nominated Cordray two years ago, but the Republicans have refused to allow his nomination to come to a vote. Obama then wanted to use his recess appointment powers to fill the vacancy while Congress was away, but Republicans have blocked that through a series of sham sessions in which a couple of members gavel in and gavel out in a few seconds every couple of days. Last week, Obama decided those sessions did not constitute real sessions and appointed Cordray anyway, and we’ve all been treated to a week of howling from the right about an “illegal” power grab by the executive branch.

I appeared on the Mike Huckabee Show this weekend and defended the president’s appointment. It felt a lot like writing here at ATL: the live studio audience even booed me to make me feel at home.

But on Friday, Republican lawmakers did something really funny: they asked Eric Holder and the Department of Justice to explain what role the Office of Legal Counsel played in advising or authorizing Obama’s move. I’m immediately reminded of Bones McCoy trying to get back to the quarantined Genesis planet in Star Trek III when he says: “There aren’t gonna be any damned permits! How can you get a permit to do a damned illegal thing?”

Regardless of the legality of the recess appointments, did Obama do the right thing?

Here’s how I defended the president on the show (if you watch through, you’ll see I remain unimpressed about his handling of the economy):

Still, the lawyer in me says that a legal technicality, even one invoked in bad faith, can’t just be ignored. The rules on what constitutes a “session” of Congress are surprisingly fluid, and so there is a chance that clocking in for 30 seconds does not make a session. But most likely, even a blink-of-the-eye, loophole session constitutes a “session” for purposes of blocking a recess appointment.

In any event, I don’t really care if Obama’s appointment of Cordray was legal. Where you come down on that has a lot to do with where you come down politically — and on the politics, this is nothing but a win for the president. Congress is being obstructionist with regards to the Consumer Financial Protection Bureau; they’re trying to kill the agency without actually taking a public vote. Every time a Republican talks about Obama’s “power grab,” there’s also the soundbite reminding people that Congress has been sitting on this appointment for two years, refusing to take an up-or-down vote. Americans like voting; they hate lawyers and technicalities.

My question is: What was the appropriate legal manner Obama should have employed to get somebody appointed to this duly authorized entity? Look, nowhere in the Constitution does it say “Congress shall have the power to… obstruct the proper functioning of a duly created federal agency by refusing to vote on an executive appointment should it be politically untenable to publicly come out against said agency.” As far as I read our founding document, Congress does not have that right.

So when the Senate refuses to advise on or consent to an appointment, when Congress tries to kill an agency they themselves voted for without actually taking a vote to repeal it, when they’re willing to engage in sham sessions to stop the executive branch from acting on an issue they refuse to vote on, what are the other branches of government supposed to do?

That’s not a constitutional question, it’s a practical law question. Constitutionally, we already know the president has a right to appoint somebody to this post. We already know that the Consumer Financial Protection Bureau was voted for by Congress and signed into existence by the president. Constitutionally, the Congress has already had a chance to weigh in on this agency; their sole remaining function in terms of getting this thing up and running is to vote on the president’s nominee. Since they’ve refused, for two years, what can President Obama legally do?

The answer can’t be “nothing.” Today it’s the CFPB. Tomorrow it’ll be the EPA. And if this ever gets flipped around and the Democrats pull this with Homeland Security, Republicans will blow a gasket. So I think it’s in everybody’s interest to figure out how to stop Congress from preventing the proper functioning of an executive office simply through their refusal to vote on a nominee to lead it.

Report Card: Obama Recess Appointment, Unemployment Rate [Huckabee Show]
Republicans seek legal answers on Obama appointments [Reuters]

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