Obama Calls GOP Bluff, Recess Appoints Consumer Watchdog, NLRB Members

When President Obama nominated Richard Cordray to head the Consumer Financial Protection Bureau - the first ever federal agency dedicated solely to protecting consumers - the Republicans in the Senate loudly declared their intention to block any nominee. Not because said nominee was unqualified, but because they wanted to use the block as leverage to weaken or eliminate the powers of the agency to protect consumers.

But you see, Congress likes to take vacations. Really long ones. Their "Christmas break" lasts till January 17 (for the Senate, till January 23). And during those vacations, the President is empowered by the Constitution to make recess appointments. But wait, wait. They are, after all, Republican members of the Senate. They are nothing if not the finest wrench throwers money can buy. So that the Senators can have their cake and eat it too, I mean so that they can have their vacation and block the president's nominations too, they set up "pro-forma" sessions to try to "technically" keep the Senate in session so that the wrench throwing continues during their lofty vacations.

Well, President Obama is calling their bluff in the face of unprecedented obstructionism. If the Senate is not working, they are on recess, period, dot, end of story. And the President is stepping up and using his Constitutional authority to appoint Cordray to the CFPB while Congress is out of town, so that the agency can begin to exercise its full range of consumer protection authorities. The White House issued a statement that reads, in part:
And we can’t wait for Republicans in the Senate to act. Now, you might hear some folks across the aisle criticize this “recess appointment.” It’s probably the same folks who don’t think we need a tough consumer watchdog in the first place. Those critics might tell you that Wall Street should write their own rules. Or you might hear them say the American people are better off when everyone is left to fend for themselves. Again, we disagree with those critics.

Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham “pro forma” sessions to prevent the President from exercising a constitutional power.
The President is in fightin' mood. And it wasn't just Richard Cordray. Greg Sargent at The Plum Line is reporting that the President is also going to make recess appointments to the National Labor Relations Board - which, under Obama, has made a slew of pro-worker decisions - in order to keep it functioning. This was without a doubt a shot across the bow of Senate Republican Leader (and professional turtle impersonator) Mitch McConnell who is oh-so-very disappointed and angry that a President (hey, he's black!) dares use his legitimate Constitutional authority to cut through the Senate's extraconstitutional sham of a process.
“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people,” [McConnell] said in a statement.
Really? The Senate is not in recess? You people must be doing the people's business right now, huh? Let's show'em how much you care, shall we? Here's the Senate's "pro-forma" session from yesterday

Yeah, sure looks to me like the Senate is hard at work. But wait, wait. Notice how the presiding officer just announced the second session of the 112th Congress before adjourning? That means that Cordray's and the others' recess appointment is good till the end of 2013, not 2012. (Hat tip to Metsfan69 in comments below)
By definition, a recess appointment expires at the end of the next full session of the Senate. If a nominee is recess appointed in the middle of a Senate session, he or she serves through the rest of that year, and through the next session.

Yesterday, it turns out, the Senate made the switch from the first to the second session of the 112th Congress. Some advocates hoped Obama would use the brief seconds between those two sessions to make the appointment. Because previous Presidents had seized that opening to make numerous recess appointments, Obama could have avoided a procedural or legal fight with the GOP. The rub, though, is that Cordray’s appointment would have expired at the end of the year. The “next full session,” after all, would have began mere seconds after his appointment was official.

By acting today, with session two of this Congress technically under way, Obama has given Cordray the rest of this session and the full next session of the Senate to run the bureau. Cordray could potentially serve through the end of 2013.

The Congressional Research Service outlined this in a recent report (PDF) — and the White House and Senate leaders of both parties confirm the analysis.
Tee hee. Yep, this man is playing chess alright.

Mr. McConnell is going to have a problem here, arguing that pro-forma shams, I mean sessions, are Constitutionally meaningful in terms of blocking recess appointments. As none other than lawyers for George W. Bush point out, since by definition and Senate's order, the Senate is forbidden from actually doing any business during its pro-forma sessions (leave it up to the US Senate to device the most ridiculous way being "in session" while mandating that nothing be done), which means advice and consent cannot be obtained, for the purposes of advice and consent, they are in substantial recess.
Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not "in session for the appointment of officers."

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in "recess" for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.
Don't want to take the view from former Bush lawyers, one of whom was personally blocked by these pro-forma sessions? Fine. Here's an academic paper from Yale Law School:
While the Supreme Court has employed a dynamic and creative interpretive method in removal power cases, lower courts adjudicating the boundaries of the Recess Appointments Clause have hewn to a static and deferential method. The Note argues for resolving this asymmetry in favor of the removal case method, and then applies this method to the pro forma sessions. In the contemporary separation of powers, recess appointments function as a constitutional safety valve, preserving the President’s ability to take care that the laws are faithfully executed. By depriving him of this safety valve, pro forma sessions violate the principle of effective governance embedded in the Recess Appointments Clause, and should be rejected.
The funny part is that Republicans, the party of unlimited, unitary executive power theory are now opposed to proper use of Constitutional power by the President, only because he's a Democrat.

Mitch McConnell, of course, has a real option of blocking any of the president's recess appointments by simply convincing the Speaker of the House, a member of his own party, not to go on recess at all and not let the Senate go on recess (since each house must agree to the other's recess). Oh, but then they'd have to be in Washington and actually, oh, I don't know, show up for work! You can't have that! You can't actually ask the Senators to work while they are pretending to be in session!

In all seriousness, this is the only valid argument one can make, if one is to be true to the Constitution rather than true to government obstructionism.

Now, it's probably good to acknowledge that "pro-forma" sessions was first originated as an idea by Democratic leader Harry Reid. Well, guess what. Reid had it wrong, and if in the future, Democrats in the Senate want to block a potential Republican president's recess appointments, they, too, will have to force the Senate to stay in actual session and you know, work and stuff.

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Oh, Keith!

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