Key Republican Senators are bracing for legislative battles and Constitutional challenges to President Barack Obama’s unprecedented end-run around Congress to install several controversial political appointees.
Obama announced the decision Wednesday to make the so-called recess appointments — even though the Senate is not in recess — putting Richard Cordray in charge of a contentious new consumer protection agency and also naming three appointments to the National Labor Relations Board (NLRB) – Sharon Block, Richard Griffin and Terence F. Flynn.
“Business as we know it in the Senate is over for this administration in terms of accomplishing anything legislatively or finding any cooperation from this side of the aisle,” said Sen. John Barrasso (R. –Wyo.). “He has poisoned the well.”
“Apparently, advise and consent called for in the Constitution doesn’t apply to this Chicago-style politician. He’s more interested in rewarding his friends than living under the law Americans need to abide by,” Barrasso said.
The Constitution allows the president to make recess appointments, but the controversy in this case is whether or not the Senate is in recess.
“I believe it’s an abuse of power. Now he is saying he’s above the law — the law doesn’t apply to him,” Barrasso said.
Republicans have kept the Congress in a pro forma session, gaveling in for a few minutes of official business every three days. It’s a tactic that was used by Democrats during the Bush administration to block recess appointments. Additionally, Obama’s own Justice Department argued before the Supreme Court in 2010 that Congress is not in recess unless it’s absent for more than three days.
Republicans say they are frustrated because Obama did not nominate the NLRB picks until last month — just two days before the Christmas holiday — allowing no time for the Senate to hold hearings.
Meanwhile, Senate Democrats have stalled the confirmation of the lone Republican nominee for the labor board, Brian Hayes, since July 2009.
Another contentious factor in Obama’s maneuver, the Consumer Financial Protection Bureau created by the Dodd-Frank Act, requires that the new director be confirmed by the Senate, so Cordray’s appointment puts the agency’s legal authority in limbo.
“I don’t think he has the full authority to run this agency,” said J.W. Verrett, an assistant professor of law at George Mason University and a senior scholar at the Mercatus Center.
“The president’s decision is a purely political one, and not about consumer protection,” Verrett said. “In fact, he’s sacrificed consumer protection. He’s more interested in being tough on Congress than being tough on predatory lenders.”
Sen. Mike Lee (R. –Utah), a member of the Senate Judiciary Committee, said these actions were not ordinary recess appointments but “egregious and inexcusable” acts of a president who thinks he’s above the law.
“As a matter of raw political force, can he do it? He just did,” Lee said.
“I think the president wanted to pick a really big fight, and he has surely chosen one,” Lee said. “This is a direct affront to the American people and the constitutional system of government that we have.”
Republicans are hesitant to give away their game plan on how they will respond to Obama’s move, but Lee suggested that Congress could withhold the salaries for the new federal appointees.
Senate Minority Leader Mitch McConnell (R. Ky.) said Obama “upped the ante” and set “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,” McConnell said.
Sen. Orrin Hatch (R. –Utah) said Obama made the appointments to placate his “big labor allies,” but that it might not be enough to save him come Election Day.
“The president put his own political future and the radical views of his far-left base ahead of constitutional government. The president will have to answer to the American people for this power grab,” Hatch said.
Vincent Vernuccio, a labor policy lawyer with the Competitive Enterprise Institute, said the NLRB appointees are a gift to Obama’s labor backers, and that Griffin comes to the board directly from a labor union.
“The vacancies on the Board have occurred because Obama has insisted on nominating pro-union ideologues too controversial to pass Senate confirmation,” Vernuccio said.
Richard Trumka, president of the AFL-CIO, congratulated Obama on overcoming what he called “Republican obstructionists.”
“Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people,” Trumka said.