McConnell blasts Obama's Cordray non-recess recess appointment

Senate Republican Leader Mitch McConnell Wednesday condemned President Obama’s decision to make a recess appointment of Richard Cordray as the first director of the Consumer Financial Protection Bureau, even as the Senate is not in recess.

“This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” said Sen. McConnell, who in a speech on the Senate floor December 17 pleaded with the White House for cooperation on the stalled confirmation of presidential appointments.

“Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch,” he said.

“Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But once again, the President has chosen to circumvent the confirmation process,” he said.

Republicans have successfully blocked the Senate from going into an actual recess since Christmas to prevent Cordray’s recess appointment by Obama.

A president has the right to make recess appointments when the Senate is out of session, but Republican senators, led by Sen. David Vitter (R.-La.) have refused to grant unanimous consent to a formal adjournment, forcing the Senate to stay technically open in “pro forma” session, even though no business is conducted and most of the senators are out of town.

White House officials said Obama will argue these “pro forma” sessions are an artificial device with no legal standing—and that the Senate was, in fact, recessed.

It was only appropriate that the White House launched a constitutional crisis on Twitter.

“We Can’t Wait: Today in Ohio, President Obama will announce the recess appointment of Consumer Watchdog Richard Cordray,” said Daniel Pfeiffer,  the White House communications director in a Tweet linking to an Associated Press story on the announcement.

A source close to the campaign to stop the Cordray nomination said staffers from Sen. Harry M. Reid (D.-Nev.), the Senate Majority Leader, put out word to Cordray supporters that President Barack H. Obama Jr., would make the appointment January 4 during a speech at Shaker Heights High School in Ohio.

Cordray, who is a long-time Democratic activist and a former state attorney general, has enjoyed strong support in Shaker Heights, a wealthy suburb of Cleveland a city that serves as his political base.

Capitol Hill sources told Human Events there was tension on the Senate floor Jan. 3, when the chamber’s 2011 session was closed and its 2012 convened, because of rumors the President would seize the intermission to make controversial recess appointments, such as he will do with Cordray.

Cordray, as the first director of the Consumer Financial Protection Bureau, is critical to its maturation.

The CFPB is the major actor agency created in the 2009 Dodd–Frank Wall Street Reform and Consumer Protection Act. The bureau is held up in an incubator stage at the Treasury Department, where it awaits its first director.

Upon the confirmation of its first director, the bureau spins off to be housed in the Federal Reserve, which will handle its administration, but exercise no control. The bureau, which will have massive new regulatory powers, will not rely on a Congressional appropriated budget and its director’s term will be for five years, so as to overlap presidential terms.

McConnell said he wanted the flaws in the CFPB corrected before the bureau left Treasury.

“The CFPB is poised to be one of the least accountable and most powerful agencies in Washington. Created by the deeply flawed Dodd-Frank law, it is subject to none of the checks that independent agencies normally operate under, and will have an unprecedented reach and control over individual consumer decisions,” he said.

Republican leaders in the Senate were put on guard, the day the sessions closed and opened, by a flurry of phone calls from White House reporters, who were operating on information they picked up at the Executive Mansion, a Senate source said.  “We weren’t sure what was going on, we were hearing all sorts of things. We thought it was going to happen today.”

Thus, the one-hour gap between the 2011 and 2012 sessions, being an actual recess, provided the president with a legitimate opportunity to appoint Cordray.

With 47 GOP votes to block the 60 votes needed to end a filibuster, a single Republican’s threat of a filibuster is enough to deter Democrats from forcing any issue on the floor, whether it is a stalled confirmation or an attempt to enter into a formal recess.

Democrats challenged the strength of the GOP bloc in a Dec. 8 attempt to force closure of the filibuster threat and fell short with 53 votes, including the vote of Sen. Scott P. Brown (R.-Mass.), a  liberal who no longer functions as a member of the Republican caucus. Sen. Olympia J. Snowe (R.-Maine) voted “present,” citing a conflict of interest because her husband’s company is the target of a federal fraud investigation.

White House staffers are keen to recess-appoint Cordray, but not keen to recess-appoint the full slate of Obama nominees currently on hold by the GOP filibuster threat.

Treasury staffers, lobbying the White House, argue the Cordray play will so enrage Republicans that they will bring the Senate confirmations to a full-stop. It is a situation that would leave a raft of Treasury nominees unconfirmed through the end of the session, such as those slated for other vital parts of the Dodd-Frank mechanism, the Financial Stability Oversight Board, which can act without quorum.

The question left open is whether the president will assert that a recess appointment is in fact a “constructive confirmation.”

A recess appointed official has the legal standing of a confirmed official, but his tenure is limited to the end of the Senate session in which he was appointed. In this case, if Obama recess-appointed Cordray, he would be the full and legal director of the CFPB until January 2013, when the new Congress is seated.

With a constructive confirmation, Cordray would take office as the bureau’s first director, and trigger the bureau’s migration from Treasury to the Fed and assume its full powers.

Dec. 7, 1903, President Theodore Roosevelt asserted a “constructive recess” in the theoretical moment between the gavel falling to conclude the 1903 session and the voice immediately following of the presiding senator calling the 1904 session to begin. In the constructive recess, Roosevelt made recess appointments of 168 Army officers and 27 civilian officials.

Faced with the option of letting the appointments stand, or demote 168 Army officers, the Senate let the Roosevelt maneuver stand.

In the case of Cordray, a new Congress could be faced with the prospect of firing hundreds of CFPB employees, closing offices and zeroing-out the thousands of rules and regulations the bureau has primed to issue.