Republicans Claim President Obama Arrogantly Circumvents American People … After Republicans Refuse to Consider Any Action Unless They Get Their Way First

Yesterday, President Obama appointed former Ohio Attorney General Richard Cordray to be the first chair of the new Consumer Financial Protection Bureau. Cordray’s appointment was a so-called “recess appointment” made while the Senate was not in session. Not surprisingly, Republicans have been highly critical of President Obama’s decision to make the recess appointment. Their criticisms have focused on several points: First, that the Senate was not actually in recess, and second, that President Obama’s use of the recess appointment option was an arrogant, unprecedented, undemocratic abuse of power.

The requirement that the Senate consent to Presidential appointments can be found in Article II, Section 2, Paragraph 2 of the Constitution:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Article II, Section 2, Paragraph 3 provides:

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.

So, with that background out of the way, let’s look at the issues.

I don’t want to spend much time on the issue of whether the recess appointment is valid; the issue comes down to whether the pro forma sessions that Senate Republicans have been holding to prevent recess appointments are sufficient to actually prevent recess appointments. That discussion gets a bit esoteric, even for me. For the record though, here is how “recess” is defined by the Senate (emphasis added): “A temporary interruption of the Senate's proceedings, sometimes within the same day. The Senate may also recess overnight rather than adjourn at the end of the day. Recess also refers to longer breaks, such as the breaks taken during holiday periods.”

Instead, I want to look at the decision to use the recess appointment and whether it is somehow an unprecedented “undemocratic” action or an example of “Chicago-style politics at its worst” (as Mitt Romney claims). As Sen. Mitch McConnell (R-Kentucky) phrased it: “President Obama, in an unprecedented move, has arrogantly circumvented the American people….” Or, in the words of Speaker of the House John Boehner (R-Ohio):

This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department… The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution.

So was President Obama’s decision to make a recess appointment “unprecedented”? And what about checks and balances?

Funny, but I don’t recall Republicans charging that President Bush engaged in a power grab when he used a recess appointment to name John Bolton as the US Ambassador to the United Nations. Perhaps more importantly, take a look at the following graph (from Mother Jones):

Hmm. It would appear that President Reagan, President George H.W. Bush, and President George W. Bush are all more “undemocratic” (arrogant?) than both President Clinton and President Obama. So maybe Republicans protest a wee bit too much on this issue? Can anyone say “hypocrisy”? What about those stones and glass houses?

But the real issue isn’t whether President Obama was being undemocratic or arrogant or acting in an unprecedented way. Instead, we should focus on the conduct of the Republicans. Remember that the Constitution requires the advise and consent of the Senate. However, Senate Republicans have blocked consideration of Cordray’s nomination to head the Consumer Financial Protection Bureau. Well, in this day and age, that’s not so unusual. Filibusters and other delaying tactics to prolong votes on unpopular nominees is nothing new.

But that’s not what happened to Cordray’s nomination.

The Senate didn’t reject Cordray because of his views. Republican Senator’s didn’t really object to Cordray. Instead, Republicans objected to the establishment of the Consumer Financial Protection Bureau. They objected to the fact that, like other federal agencies, it had a chair (instead of a board of directors). And they objected to it having an budget that did not require the Bureau to come back to Congress for new funding each year. You see, Republicans refused to allow Cordray’s nomination to come to a vote unless President Obama agreed to change the structure of the Consumer Financial Protection Bureau in ways that would weaken the nascent organization. As CNN noted:

[W]ithout a director, for example, the bureau can't regulate financial products from non-banks, including student loan providers, debt collectors, payday lenders and check cashers.

Without a chief, the bureau also can't regulate mortgage originators and servicers, which played a big role in the financial crisis by providing subprime mortgages to families who couldn't afford them.

Just in case you think that I’m being a bit too hyperbolic in my explanation of Republican objections, here’s what Speaker Boehner had to say:

This position had not been filled for one reason: The agency it heads is bad for jobs and bad for the economy. It’s clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward.

Or there is this statement from Sen. McConnell following the recess appointment (emphasis added):

Earlier this year, 44 of my Senate Republican colleagues and I served notice that we will not confirm any nominee as director, regardless of party, until structural changes are made to make the bureau accountable to the American people — and more transparent.

You see? Nothing about Cordray at all. The objection is to the Bureau that Congress created in 2010. Republicans lost that debate but now they’re trying to hold up the President’s right to appoint a nominee, not because they object to the nominee, but because they object to the structure and purpose of the Bureau. Go back to Sen. McConnell’s claim that the recess appointment has “arrogantly circumvented the American people”. I’d argue that refusing to allow a vote, not because of any issue with the nominee, but because Republicans don’t like the nature of the Consumer Financial Protection Bureau is the real case of “arrogantly circumvent[ing] the American people”.

Just to be clear, the organization that we’re discussing is the Consumer Financial Protection Bureau. It is designed to help protect consumers. But Republicans don’t like that, do they?