Forum Right, 1/17/12

Obama Violates the Separation of Powers Clause with Cordray Appointment

By David H. Landon

On January 4th President Obama violated the “separation of powers” clause of the U.S. Constitution with his attempt to name Richard Cordray director of the Consumer Financial Protection Bureau (CPFB) and three others to the National Labor Relations Board. The Republicans in the Senate had blocked Cordray’s appointment since the President announced his selection of Cordray last summer. The appointment came at a time that the Senate was still in “pro forma” session, which should have served as a legal block to the President making a “recess” appointment. Despite that fact, Obama has attempted to circumvent the legislative process and appointed Cordray to the post.

Normally, an appointment such as Cordray’s would require the consent of the Senate. But it’s not so much that the Republicans oppose Richard Cordray. The former Ohio Attorney General seems to be a pleasant enough fellow, with even Ohio Republican Senate Rob Portman speaking highly of him.  The problem is with the CPFB, which is part of the Dodd-Frank reform bill. This newly hatched watchdog agency has the potential to become a regulatory nightmare. And as it is currently funded, the Congress would lose control of the purse strings over the agency. Republicans fear that a runaway agency loose within the financial infrastructure of the nation could create enormous harm, much like the damage already brought upon us by the likes of Freddie Mac and Fannie Mae. The CPFB lacks both transparency and accountability, and Republicans have asked the administration to work with them in defining the role and the limits of CPFB before consenting to Cordray’s appointment.

The “recess appointment” was originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks. Constitutional scholars argue that recess appointments are still valid today, but only if the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been in recess.

So what’s at play here? Article I, Section 5, of the Constitution states that neither the House or Congress may adjourn for more than three days without the consent of the other. In the current situation the House of Representatives, controlled by Boehner and the Republicans, did not consent to a Senate recess of more than three days during the final weeks of December and into the New Year. The Senate, consistent with the requirements of the Constitution, must have some sort of session every few days, and has been doing so. Under prior practice, these “pro forma” sessions would prohibit the use by a president of the recess appointment.

When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush’s use of the recess appointment power. Reid was right, whether or not his tactics were justified. My Democrat friends thought at the time that Reid’s parliamentary maneuver was clever. For a two-week break around Thanksgiving 2007, Reid ordered up the pro forma sessions, calling on Sen.  James Webb (D-Va.), who lived in nearby Virginia, to oversee those sessions.

Now we see the shoe is on the other foot. The Republicans are holding the pro forma sessions as a way to prevent a Presidential appointment. Lo and behold: Reid is calling the current pro forma session somehow illegitimate and claiming that Congress is in fact in a recess.

About ten days before his announcement of Cordray, and during the period that Obama now claims was a recess, the President asked the pro forma performing legislature to pass an extension of the payroll tax cut. The Congress obliged and on December 23rd, President Obama signed a two-month extension of the payroll tax cut.  He said that Congress passed the bill “in the nick of time”.  The compromise extension really did come through at the last minute, but by the use of the pro forma legislative model, the government was able to pass important legislation.  If the legislature was truly in recess, as the Obama administration claims as justification for the Cordray appointment, the extension of the payroll tax cut could not have occurred.

The President is clearly trying to have it both ways: signing a bill that passed in a pro forma session, and then claiming that the pro forma session was really a recess to justify the Cordray appointment.

It really is inconsequential that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures. Ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

President Obama’s recess appointment is in fact a flagrant violation of the Constitution. The president is not empowered by the Constitution to decree when the Congress is or is not in recess.  Our system of government is a delicate balance of the three branches of government.  The President has usurped the “Advice and Consent” power of the Senate and these unconstitutional appointments must be rescinded.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at DaveLandon@DaytonCityPaper.com.

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