Obama Sets New Precedent: Making Recess Appointments with the Senate in Session
When the founding fathers structured our constitution, historians agree their fear was that Congress could become too powerful, and shut the legislative and executive branches out of the governing system, essentially becoming the government. This fear stemmed from the amount of power given to Congress in the constitution, which was done in order to prevent one man from becoming a ruler or monarch. Presidential power has been a centuries long experiment, revolving around how much a president can and should be able to do alone. When Abraham Lincoln suspended the writ of habeas corpus many thought that outside the president’s abilities; likewise, many thought the president had no right to issue an emancipation proclamation. Since then many controversial executive orders have been issued; from the great depression “new deal” era, to President Bush after 9/11, presidential power has always been a fluid concept. So the unprecedented move by President Obama in bypassing the Senate to appoint a head of the new Consumer Financial Protection Bureau no doubt struck controversy. The constitution clearly states that a president must have all department heads approved by the Senate unless the Senate is in recess. Yesterday President Obama appointed Richard Cordray as the head of the CFPB as well as three members to the National Labor Relations Board (NLRB) even though the Senate was not technically in recess. At first glance this seems clearly unconstitutional; however, the Obama team is arguing it is not, and their case is complicated. The Senate never officially recessed, meaning that President Obama has no constitutional grounds with which to appoint bureaucrats; however, the Senate has not been in on Capitol Hill as a body in weeks. In order to avoid these recess appointments the senators have been holding “pro-forma” sessions, where one of the closest republican senators comes in to the Senate chambers, bangs the gavel to signal the start of a session, then bangs it again to end the session. Thus the Senate is still technically in session, though in reality they are on a recess.
This tactic has been used before, in fact it was invented by Democrats to keep President Bush from making recess
appointments, and it worked. President Bush honored the letter of the constitution and did not make these appointments; President Obama has ignored the letter of the constitution, claiming a spirit of the law interpretation, and making appointments anyway. Republicans cry foul for an array of reasons, but one such is presidential power. If the President has the ability to do this, what can stop him from making appointments over the weekend while the Senate is home? They would still be in session, but if we follow this precedent set by President Obama, that is enough of a recess to make an appointment. Democrats are applauding this move by President Obama; the support for this is hypocritical at best. Republicans have been fairly reasonable with the Obama appointments, only forcing him to use 28 recess appointments to this point in his presidency. Democrats showed President Bush no such favor, forcing him to use a recess appointment 61 times by this same stage in his presidency. The biggest difference is that democrats held up the appointments for no reason other than the typical childish petulance of politics: opposing the other party because they are the other party. Many of President Bush’s appointments were held up in departments the United States must have to function properly, such as defense and justice. Secretary Rumsfeld, in his memoir tells of waiting months and months to be approved, and then months after that to have some of his most important aids and staffers in the defense department approved by the democratic Senate. He hints that he believes if it were not for the 9/11 attacks he would not have had enough people at the Pentagon to do his job. Republicans on the other hand are holding up a department that is less than two years old, being created by the 2010 Dodd frank act. Moreover, Republicans have legitimate reasons for halting the approvals; they are not just playing petulant politics, or at least that is what they say. Given their reasoning it seems fair to assume they have honest concerns.
Senate Republicans have openly said that they do not oppose the appointment of Richard Cordray; their concern is with the CFPB as a whole. Republicans fear the agency has too much power over the free market, and need three key adjustments which if made, would create a very beneficial department. The GOP is willing to work with the President, and attempting to compromise, but President Obama will not have it, making appointments without even considering revisions to the CFPB. The President released a statement saying “the American people deserve to have qualified public servants fighting for them every day – whether it is to enforce new consumer protections or uphold the rights of working Americans. We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it.” The mission of the CFPB is very important; the citizens of the United States deserve security from faulty banking to prevent another meltdown like the housing crises. However, the SEC is already tasked with this; the CFPB will have nearly limitless power to make regulations and restrictions on firms and businesses, thereby dictating all economic activity and productivity if they are allowed.
The three primary concerns of the Republican senators, penned in a letter which can be read here, are very reasonable and fairly easy to implement. First is that the Bureaucracy be headed by a board, not an individual, so as to put a check on the nearly limitless regulatory power of the agency. This makes perfect sense whether you are a Democrat or Republican for one reason, stability. Above all we know the one thing the economy and the financial markets must have to grow is stability; we hear the word all the time in analysis. Investors and job creators are waiting for the economy to stabilize before they begin large new projects, and consumers are waiting for the market to stabilize before they decide it is ok to stop putting away every penny, and start spending again. With the CFPB headed by one individual it will become a political appointment by each president. It is fair to assume that each time a Democrat is in the White House the bureau will be more likely to heap on regulations and restrictions, while a Republican appointee will remove most such regulations. This will drastically destabilize the economy, thereby hurting the economy. A board of directors is possibly the best way to provide the security the President is pursuing. The second objection is that the bureau should be part of the Congressional appropriations process, meaning the Congressional budget. Currently the CFPB answers to no one for their expenditures, and could presumably spend as much as they please. Considering that most, if not all financial agencies, including the Securities and Exchange Commission and the Federal Trade Commission are given a budget by Congress in the appropriations process, why should the CFPB have no oversight or accountability to the very people the bureau was established to protect. The third Republican objection is to put a safety check on prudential regulators. They argue that the CFPB needs the right tools to assess their regulations in order to prevent causing a bank failure. This is common sense; a stable bank is one of the best consumer protections that our nation can have. Look at how our economy has been affected by the housing crises which caused bank failures; if bank failures were to happen again, we would have the same outcome. What protection does that provide consumers? Compromise works. Both sides can be pleased, and it is not even that difficult; however, it is best for our nation.
The bottom line comes down to power. How much power should the President of the United States have? It is understandable that we need a strong commander in chief during times of crisis to lead our military; however, it seems very telling that President Bush, whom the media loved to portray as a power hungry and war loving president, did not make recess appointments by going around the Senate, the way President Obama has done. Is it really a good idea for our nation if we have a president who has the ability by simple executive order to create a bureaucracy (the CFPB was not created by an executive order, though President Obama has created agencies this way) and appoint staff without a single word from the Senate? Furthermore, do we want these bureaucracies to run free from congressional oversight, and have power to regulate nearly anything in their sphere of influence? How much power is too much? Businesses who oppose these appointments will surely fight their legality in court, arguing that a President cannot make appointments in this way, and surely none has before. Admittedly, this is a trivial matter; we do need something to protect us from the criminal banking practices which led to our current recession. However, we need to remember that once we give away power, it is nearly impossible to get it back without drastic measures. The CFPB is not the problem; the ability for one person in our government to do anything they want, separate from all other elected officials is the problem. Our ancestors fought and died for the power in this nation to be with the people, that concept is fleeting at an alarming pace, and these appointments, if allowed to stand, are a large step away from government by the people.
6 January, 2012
Posted on January 9, 2012, in Constitutional Law, Patriotslog Articles, Politics and tagged CFPB, Congress, democrats, dodd-frank, President Obama, pro forma, recess appointments, regulations, republicans, Richard Cordray, Senate, Wall Street. Bookmark the permalink. Leave a comment.