Power Grab: Obama Recess Appoints Consumer Finance Czar

Obama’s new Consumer Financial Protection Bureau director is supposed to be confirmed by the Senate—not installed via recess appointment—

Yet here’s Ed Morrissey over at Hot Air sticking up for Obama:

National Journal reportsthat Obama will announce a recess appointment for Cordray to the Consumer Financial Protection Bureau — and escalate the division between the Senate and the White House, and Democrats and Republicans:

President Obama will announce today that he will appoint Richard Cordray as head of the controversial Consumer Financial Protection Bureau during the Senate’s recess, the White House said.

The appointment comes to the dismay of Senate Republicans, who blocked Cordray’s nomination in order to weaken the bureau. …

Obama is scheduled to make his first public appearance of 2012 on Wednesday at 1:15 p.m. in the suburbs of Cleveland — Cordray’s home state.

Of all the controversial appointments that the Senate GOP has managed to bottle up, this one had the weakest argument.  The objections of Republicans to Cordray rested mainly on the CFPB itself, not Cordray.  They had already forced Obama to withdraw his first nominee, Elizabeth Warren, who proved inartful at Congressional relations anyway.  The CFPB itself was a battle Republicans lost over a year ago.  Congress passed it into law, and Obama should be able to get a nominee to run it confirmed.  Republicans can win the next election and make the changes they wish in the next session, but it’s unreasonable to simply block the agency from operating with its chosen leadership.

They’ve been holding up the appointment until changes to the agency’s structure are made to provide oversight and accountability. I don’t think it’s unreasonable to insist on accountability.

Captitol Confidential at Big Government calls this an unconstitutional power grab:

Article II, Section 2 of the Constitution provides the president with the power to “fill up all Vacancies that may happen during the Recess of the Senate.” The problem for the president and his liberal allies is that the Senate has not recessed and technically remains in session. However, liberal groups are pressing the White House to invoke the “Roosevelt Option” to stack key government positions with radicals ready to carry out an anti-business, pro-big labor regulatory agenda. The Roosevelt Option is coined from the actions of Teddy Roosevelt who in 1903, in a split-second between two congressional sessions of Congress, made more than 100 recess appointments. In 2012, Congress will need to move from the First Session of this current Congress to the Second Session. Liberals claim the fraction of a second between the sessions is enough to trigger presidential power.

Others are more brazenly calling for the president to invoke presidential powers never before contemplated. Some have even suggested the president declare the Congress in recess, like a tinhorn dictator from a Third World country.

But even invoking the so-called “Roosevelt Option” may not solve the liberals’ conundrum. Sources tell Capitol Confidential that the statute creating the CFPB demands that the director be confirmed by the Senate—not installed via recess appointment—to trigger the agency’s shift from Treasury to the Fed and empower the Director.

But none of the legal or constitutional arguments may matter much. Liberals and the Obama administration appear poised to forge ahead with an outrageous and unconstitutional power grab. And by the time the courts work it out, so much damage will already be done.

Even *RINO, Orrin Hatch is outraged:

“This is a very grave decision by this heavy-handed, autocratic White House. Circumventing the Senate and tossing out decades of precedent to appoint an unaccountable czar to appease its liberal base is beneath the office of the president,” Hatch said in a statement. “The legislative branch exists as a check and a balance on the executive. By opening this door, the White House is saying it can appoint any person at any time to any position it chooses without the advice and consent of the Senate. This is not how our republic was designed to function.”

Michelle Malkin links to Cordray’s new, unregulated, regulatory powers:

Refresh your memories on Cordray and the expansive new regulatory powers he will now wield here.

Flashback — Obama 2005: Recess appointees are “damaged goods;” Obama 2010: Recess appointments are “critical” need

As The AP reported on New Years Eve: In 2012, Obama to press ahead without Congress:

The White House believes GOP lawmakers boxed themselves in during the pre-Christmas debate on the tax break and will be hard-pressed to back off their own assertions that it should continue through the end of 2012.

Once that debate is over, the White House says, Obama’s political fate will no longer be tied to Washington.

“Now that he’s sort of free from having to put out these fires, the president will have a larger playing field. If that includes Congress, all the better,” said Josh Earnest,White House deputy press secretary. But, he added, “that’s no longer a requirement.”

Aides say the president will not turn his back on Congress completely in the new year. He is expected to once again push lawmakers to pass elements of his jobs bill that were blocked by Republicans last fall.

If those efforts fail, the White House says, Obama’s re-election year will focus almost exclusively on executive action.

Earnest said Obama will come out with at least two or three directives per week, continuing the “We Can’t Wait” campaign the administration began this fall, and try to define Republicans in Congress as gridlocked and dysfunctional.

And Keith Koffler noted just the other day: Obama has officially abandoned governing:

In a startling interview with the New York Times, White House Deputy Press Secretary Josh Earnest all but acknowledged that Obama was finished with the presidency until he wins it again.

“In terms of the president’s relationship with Congress in 2012,” Mr. Earnest said at a briefing, “the president is no longer tied to Washington, DC”

The president is no longer tied to Washington DC? Are Congress and Obama going to take their act on the road and make laws in Cincinnati? We’re finished legislating for the year?

“There are certainly other things the president would like to do,” Mr. Earnest said, citing other provisions of the jobs bill. “But in terms of essential, must-do items, the payroll tax cut extension is the last one.”

So, the economy is stalled, millions are out of work, and there are no more “must do” items, other than the president’s reelection?

I have to give the White House credit for putting its card on the table. This is certainly a record-setting level of Chutzpah they are displaying. I called the Guinness Book of World Record, in fact, and they agreed to publish it immediately.

I don’t think now is a good time for Republicans to play dead. I want to see them fighting back.

UPDATE:

Speaker Boehner weighs in on the appointment at his website:

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Courtthe Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days. Here’s the exchange with Chief Justice John Roberts:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Speaker Boehner called the appointment an “extraordinary and entirely unprecedented power grab,” and noted that the position “had not been filled for one reason: the agency it heads is bad for jobs and bad for the economy.” Read his full statement here, and read the statement from Senate Republican Leader Mitch McConnell (R-KY) here.

You might want to read the comments at Boehner’s site. People are begging Boehner to “do something” about it – several  suggest he should begin impeachment proceedings.

See also:

Weasel Zippers: Obama Defends Cordray Appointment: I Have An “Obligation” To Act Like A Dictator…

The Foundry: A Tyrannical Abuse of Power: Obama Attempts to Appoint Cordray to CFPB:

In a revelation that is quite shocking to anyone who knows anything about the 100-plus years of precedent on the recess appointment power or the separation of powers, the White House today announced that the President planned on making a purported recess appointment of Richard Cordray to the new Consumer Financial Protection Bureau. This is a position the Senate has refused to confirm Cordray for, and it is also of note that the White House announced this momentous decision in an official tweet from communications director Dan Pfeiffer.

Heritage’s Diane Katz has explained why that position should remain unfilled until the agency’s powers are modified, but the alleged recess appointment is outrageous no matter what position it would supposedly fill. What is shocking is that the Senate is not in a recess that would allow a recess appointment, and it can’t be under the Constitution, even if many Senators are not in D.C.

Keep reading.

Prof. Jacobson:

Obama’s recess appointment of Richard Cordray to the new Consumer Financial Protection Bureau correctly is portrayed as a naked power grab.

First, the Senate is not in recess.  Harry Reid and other Democrats in the past treated the current Senate pro forma business status as not being in recess.

Second, the Dodd-Frank legislation which created the position Cordray will fill specifically requires Senate confirmation.  A recess appointment is not confirmation under any scenario.

According to Greg Sargent, Obama has more recess appointments lined up for the NLRB.

So are the appointments really the issue?  In part, yes, but they are just the excuse.  Obama’s campaign theme is to run against Congress.  What better way to run against Congress than to create a confrontation with Congress?

Hot Air: Doubling down: Obama follows Cordray recess appointment with three more to NLRB

MRCTV: Richard Cordray: Any Legislation Which Has Even “Incidental Effects on the Economy” is a “Valid Exercise of Congressional Authority”

Breitbart TV: Obama Creates 1-800 Hotline To Advise Whether Mortgages Give ‘Fair Deal’:

During President Obama’s speech announcing his recess appointment of Richard Cordray to the position of Director of the Consumer Financial Protection Bureau (CFPB), he announced that Cordray’s agency would be setting up a ‘1-800’ hotline that one could call to ensure they were getting a ‘fair deal’ on a mortgage.

Linked by Michelle Malkin in Buzzworthy, thanks.

*Orrin Hatch’e RINO status in dispute in the comments. I was probably a bit hasty in labling him a RINO. He has been mostly conservative – but when he strays off the reservation….hoo boy.