There are two legal/constitutional objections: First, that the president can’t make a recess appointment for a post that requires Senate confirmation if the Senate’s not in recess. Technically, it hasn’t been.
The second objection is that Cordray’s newly created post of director of the Consumer Financial Protection Bureau established under Dodd-Frank isn’t legally empowered until confirmed by the Senate.
I was looking for the actual statutory language, but Mike Konczal of Rortybomb is already there, and seems to have an airtight case that this is bigtime bogus.
In the meantime, he puts a few heads on the pike:
However there’s a dissent in the piece from Mark Calabria. That dissent is based on his post at Cato’s website, Obama’s Constitutional Gamble on Consumer Finance Nomination…
Daniel Foster links to it at National Review, and I’m sure the contagion is spreading far and wide.
After building a persuasive case with the actual statutory language, Konczal’s grand finale:
Is that enough to take down the zombie? Did we hit the brain, or just the jaw? I’m scared to go inspect the body….
Mr. Konczal seems pleased if not overpleased with his triumph here over ideological archfoils Cato and NRO. Still, we can’t deny him his victory lap. And he’s quite right about bum arguments getting all over the internet before the good ones get their shoes on.
I believe his last name is Cordray, unless this is a joke sailing past my head.Report
Thx, Mr. Phillipe. Been making that mental typo all day. Got Konczal right, tho. I think…Report
It’s all good. I’ve murdered Konczal’s name quite a few times.Report
Well, so long as the genie promises to go back in the bottle…Report
Eh, it’s not that simple–for starters, the Senate itself, as I understand it, wants to go into recess, but is prevented by the House holding pro forma sessions. Given that the Constitution grants the House no power over appointments whatsoever, I’m finding it hard to get too exercised about a counter-loophole being used to circumvent them.
Disclosure: this is only my understanding, and thanks to my (insert Haddock-level cursing) New Years Resolution, I have fairly low blood sugar at the moment. I’m drawing it from this excellent post about the institutional politics of the move–to my mind it doesn’t stress enough the practical reasons for the appointment, but it’s well worth a read.Report
It’ll be interesting to see how all of these theatrics are received by the public.
Nothing though could be more useless and wasteful than challenging this move.Report
I’m not sure the first objection holds water (yes, I know this is thinkprogress, but this seems on the face of it to at least make sense).
The Rortybomb post seems pretty straightforward.
While I’m not a fan of the recess appointment, I’m less of a fan of the legislative branch basically refusing to do business in an attempt at dragass. If they don’t want the CFPB to be a government agency, introduce legislation to get rid of it. Refusing to act through red tape is getting to be all too common.
Best yet, sit down and work out a confirmation process that can’t be hijacked by political bullpuckey. The President submits a candidate, the Senate has one session to confirm or deny on a straight majority vote. If they refuse to confirm a candidate within a couple of tries, the President can assume that the advice of the Senate is that the President submit a candidate that the President is not going to submit, and then the President discounts that advice and announces his or her last candidate. The Senate can either confirm that candidate, or stay in session… without recess… until the President gives them a candidate they’re willing to confirm. Somebody has to blink eventually, with eventually < a year.Report
Dems stayed in continuous session for a while, during bush’s tenure. a long while, I think.
(that said, I have much more patience with the Senate saying “no, we want you to talk with us” rather than the house playing procedural mindgames)Report
Kudos and thanks for the link and for being so on top of this, Tom.Report
Cheers, Mr. Drew. To PatC: if Congress says it’s in session, I don’t see how the executive branch has the standing to decree it’s not. I don’t like this one.Report
Typical Dem hypocrisy, so there is nothing to see here, please move along.Report