Wednesday, January 4, 2012

Hypocrisy: (noun) From the Greek term for "Senate Democrats"

Today, President Obama appointed Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) while the Senate was in pro forma session. The CFPB is an unaccountable bureaucratic nightmare that was birthed from the Dodd-Frank bill, and Republicans are rightfully criticizing this latest abuse of power by the Obama Administration. 

The criticism of this appointment is warranted for several reasons:

First, today's actions expose a whopping pile of Democrat hypocrisy. During the previous administration, then-Senator Obama and his Democrat colleagues screamed bloody murder about any discussion of recess appointments by Bush.

The Senate Republican Communications Center helpfully sent out a list of quotes from Senate Democrats about recess appointments:

  • A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he's damaged goods… somebody who couldn't get through a nomination in the Senate. And I think that that means that we will have less credibility...” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05) 
  • ‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07) 
  • ‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don't let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)
  • Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
  • A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
  • ‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he's going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05) 
  • ‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor's recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05) 

Reading these quotes, you would think that recess appointments threaten the end of the world. What a difference a few years makes, hmmm?

Second, Cordray himself has some interesting views on the limit of congressional authority (and by "interesting," I mean radically liberal and completely out of the mainstream opinion of anyone who, say, has read the constitution before). Stephen Gutowski has a good post with the details here.

Third, and perhaps most importantly, the Senate is not actually in recess, so Obama's appointment of Cordray is an especially egregious abuse of power. (Most. Transparent. Adminstration. EVER!)

Phil Kerpen has written an excellent op-ed that describes why this appointment is so outrageous:

...Obama also believes he can decide for himself that the Senate is in recess when it is not, overturn at least a hundred years of precedent, and bypass the Constitution’s advice and consent requirement.

Moreover, the president now considers it a political virtue that he is doing precisely what he criticized George Bush for doing: “make laws as he is going along.” Obama now says: “I refuse to take 'No' for an answer… when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”

If he were acting within the confines of the law and the Constitution, the argument might make sense. But Obama has now adopted a theory of executive power so expansive that a reporter at a recent press conference understandably asked whether the president believes we have a virtual monarchy, a president of unlimited powers subject only to periodic elections but not to the rule of law...

According to a 1993 brief from the Clinton Justice Department, Congress must remain adjourned for at least three days before the adjournment constitutes a “recess” for the purposes the recess appointment power. 

The origin of this three day period is Article I, Section 5 of the Constitution, which states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” 

In other words, the president can only recess appoint when the Senate has adjourned for more than three days, and the Senate cannot adjourn for more than three days without the consent of the House. Speaker John Boehner has properly withheld that consent to prevent Obama from installing radical appointees into key positions...
Read the rest here.

Further reading:

Michelle Malkin | He’s baaaaack: Obama recess-appoints Dodd-Frank czar

RedState |  Moe Lane | President Obama to flip-flop on recess appointment?

CATO at Liberty | Mark A. Calabria | Obama’s Constitutional Gamble on Consumer Finance Nomination

Legal Insurrection | Obama desperately seeks a crisis to take advantage of

UPDATE: Obama is doubling-down on the unconstitutional chicanery, by adding a few non-recess appointments to the National Labor Relations Board

[Cross-posted at RedState]

UPDATE II: Statement from Senate Minority Leader Mitch McConnell:

“Just hours after he circumvented the American people by 'recess' appointing Richard Cordray to the CFPB, the President has upped the ante by making several additional recess appointments, this time to the NLRB. Although all of these appointments potentially raise legal and constitutional questions, the NLRB appointments are particularly egregious. Because the President waited to nominate Sharon Block and Richard Griffin until just two days before the Senate was scheduled to adjourn last month, neither has undergone a single confirmation hearing or a single day of debate by the representatives of the American people. Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But what the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress. This was surely not what the framers had in mind when they required the President to seek the advice and consent of the Senate in making appointments.” 


  1. Sarah:

    Here's a link to an interesting article on this same topic.

  2. Cute. What the above poster completely misses is that this was NOT a recess appointment. Completely different situation.

    Also, providing a list of how two-term presidents made more recess appointments than Obama in three years isn't really an exact comparison, is it?

    Regardless, the issue is not whether other presidents have made recess appointments, but rather the fact that the Democrats loudly opposed the idea when Bush was president, thereby showing their hypocrisy now...and again, this was NOT a recess appointment.

  3. Rather than cry "hypocritical Democrats," why don't you just admit that the Republicans are just as corrupt and power hungry as the Democrats, and that the Republicans will object when a Democratic president does something, just like the Democrats object when a Republican president does the same thing. It's all politics, plain and simple.

  4. Weren't they session for all of 30 seconds? Just long enough to say they are going to be on recess and also just long enough to be able to cry foul when all was said and done. This countries political parties are more interested in screwing each other over then they are in helping the people that got them there. It's a sad state of affairs we are in.

  5. No, AnyMouse, they werent in session for 30 seconds. There was no gimmick by anyone other than the White House. The Senate was in pro forma session, which is a specific legal status that has to be declared. They were most certainly not in recess.


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