Power Over Principle

Democrats Yawn at Rule of Law


Contempt for Congress
Obama makes recess appointments when there's no recess.
WSJ Editorial, January 5, 2012

Remember those terrible days of the Imperial Presidency, when George W. Bush made several "recess appointments" to overcome Senate opposition? Well, Czar George II never did attempt what President Obama did yesterday in making recess appointments when Congress isn't even on recess.

Eager to pick a fight with Congress as part of his re-election campaign, Mr. Obama did the Constitutional equivalent of sticking a thumb in its eye and hitting below the belt. He installed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board. He did so even though the Senate was in pro forma session after the new Congress convened this week.

A President has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess.

The last clause of Section 5 of Article 1 of the Constitution says that "Neither House" of Congress can adjourn for more than three days "without the Consent of the other" house. In this case, the House of Representatives had not formally consented to Senate adjournment. It's true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let's hear Mr. Obama's legal justification.

"POST," Indeed!

Democrats had used a similar process to try to thwart Mr. Bush's recess appointments late in his term when they controlled both the House and the Senate. Prodded by West Virginia's Robert C. Byrd, who has since died, Majority Leader Harry Reid kept the Senate in pro forma session. Some advisers urged Mr. Bush to ignore the Senate and make recess appointments anyway, but he declined. Now Mr. Reid is supporting Mr. Obama's decision to make an end run around a Senate practice that he pioneered.

Some lawyers we respect argue that a pro forma session isn't a real Congressional session, and that's certainly worth debating. But that isn't the view that Mr. Reid or then-Senator Obama took in 2007-08, and it would certainly be an extension of Presidential power for the chief executive to be able to tell Congress that he can decide when Congress is really sitting and when it isn't. In any event, that still wouldn't explain the violation of the language in Section 5 above.

These appointments are brazen enough that they have the smell of a deliberate, and politically motivated, provocation. Recall the stories over the New Year's weekend, clearly planted by the White House, that Mr. Obama planned to make a campaign against Congress the core of his re-election drive. One way to do that is to run roughshod over the Senate's advice and consent power and dare the Members to stop him.

Mr. Cordray's appointment also plays into Mr. Obama's plan to run against bankers and other plutocrats. The President justified his appointment yesterday by saying that Senate Republicans had blocked Mr. Cordray's nomination "because they don't agree with the law setting up the consumer watchdog."

Yet he knows that Senate Republicans haven't called for the dissolution of the consumer financial bureau, or personally attacked Mr. Cordray, as Democrats like to claim. Republicans have said they'd be happy to confirm him if Mr. Obama agrees to reforms of the bureau that would make it more accountable to elected officials and subject to Congressional appropriations. As it stands, the bureau is part of the Federal Reserve but Mr. Cordray sets his own budget and doesn't report to the Fed Chairman. His rule-makings also don't need to worry about such inconvenient details as bank safety and soundness.

The bureau has been up and running since July and is already pushing the boundaries of its examination powers. With Mr. Cordray on board, he says the bureau can now begin to issue rules, including oversight of nonbank institutions and the ability to define what constitutes an "abusive" act or practice, an invention of the Dodd-Frank financial reform that will surely lead to mischief.

As Ohio Attorney General, Mr. Cordray was tight with the tort bar and launched a barrage of national lawsuits worthy of Eliot Spitzer. His new job might be a nice populist springboard for running for Ohio Governor, should he choose to do so. Look for Mr. Cordray to announce new and controversial rules or enforcement actions, oh, say, around Labor Day.

As for Mr. Obama's three NLRB appointees, he only notified Congress of his intent to nominate them on December 15. The Senate hasn't had time to hold a single confirmation hearing. The nominees, two Democrats and one Republican, will give the labor board a quorum that it wouldn't have had with the December 31 expiration of the term of previous recess-appointee Craig Becker.

Under this Administration, the supposedly nonpartisan NLRB has become a partisan arm of Big Labor, and that will probably continue this election year. Appointee Sharon Block is the Labor Department's Congressional liaison and former aide to Ted Kennedy. Richard Griffin is general counsel for the International Union of Operating Engineers.

Remember a year ago when Mr. Obama was talking about "regulatory relief" and moving toward the political center? He even sent us an op-ed.

Congress can't do much immediately to stop these appointments, but it ought to think creatively about how to fight back using its other powers—especially the power of the purse. However, private parties will have standing to sue if they are affected by one of Mr. Cordray's rule-makings, and that's when the courts may get a say on Mr. Obama's contempt for Congress.