Right-wing media have called President Obama’s recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) during a Senate recess of fewer than three days an “open declaration of war on constitutional principles” and an “unprecedented power grab.” However, neither the Constitution nor the courts have specified how long the Senate must be in recess for a president to make a recess appointment; past presidents have made recess appointments during recesses of three days or fewer; and congressional Republicans are engaged in unprecedented obstructionism that is preventing hundreds of Obama nominees from being confirmed.
“Unprecedented Power Grab”: Conservative Media Attack Cordray Appointment
Big Government: Cordray Appointment “Would Be An Open Declaration Of War On Constitutional Principles And Completely Undermine Our System Of Checks And Balances.” From a January 3 post on Andrew Breitbart’s Big Government website, headlined “Red Alert: New Unconstitutional Presidential Power Grab May Be Imminent”:
So, let’s be clear about what is happening here: The President of the United States is planning to use an obscure precedent to claim that a split second in time empowers him to go around Congress to appoint a director to an agency that has broad unchecked, almost dictatorial powers to regulate business in America with little or no oversight from the peoples’ representatives in Congress.
Such actions by the president would be an open declaration of war on constitutional principles and completely undermine our system of checks and balances. These kinds of power grabs are exactly how Banana Republics are born. [Big Government, 1/3/12]
NRO: Cordray Appointment Is “Doubly Offensive To The Constitution, Snubbing Congress And Usurping It In One Stroke.” In a January 4 post on National Review Online’s The Corner, headlined “While Everyone Dissects Iowa, the President Dissects the Constitution,” the Competitive Enterprise Institute’s Iain Murray wrote:
Sources suggest that the president is going to go ahead and appoint Richard Cordray to appoint the new regulatory behemoth called the Consumer Financial Protection Bureau. He will do this as a recess appointment, despite the fact that the Senate isn’t in recess. My colleague John Berlau has the details at Openmarket.
As John implies, this appointment is doubly offensive to the Constitution, snubbing Congress and usurping it in one stroke. I humbly suggest that it is time for the conservative movement to focus on what the president is doing here. [National Review Online, The Corner, 1/4/12]
Drudge Report: “Liberals Press Obama To Ignore Rules, Appoint Cordray Without Congressional Approval.” A January 4 Drudge Report headline read:
[Drudge Report, 1/4/12]
FoxNews.com Op-Ed: “Obama’s Cordray Appointment Mocks The Constitution.” From a January 4 FoxNews.com opinion piece by Phil Kerpen, Vice President for policy at Americans for Prosperity, headlined “Obama’s Cordray Appointment Mocks the Constitution”:
In 2008 candidate Sen. Barack Obama famously said: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing and end run around Congress.”
Now, we find that not only was he kidding about signing statements — he recently used one to ignore about 20 provisions of the omnibus spending bill — but Obama also believes he can decide for himself that the Senate is in recess when it is not, overturn at least a hundred years of precedent, and bypass the Constitution’s advice and consent requirement.
Moreover, the president now considers it a political virtue that he is doing precisely what he criticized George Bush for doing: “make laws as he is going along.” Obama now says: “I refuse to take ‘No’ for an answer… when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”
If he were acting within the confines of the law and the Constitution, the argument might make sense. But Obama has now adopted a theory of executive power so expansive that a reporter at a recent press conference understandably asked whether the president believes we have a virtual monarchy, a president of unlimited powers subject only to periodic elections but not to the rule of law. [FoxNews.com, 1/4/12]
Geller: “More Of Obama’s Hurry Up Fascism. The Thug Presidency Continues.” In a January 4 post on her blog Atlas Shrugs, headlined “Obama'[s] Unprecedented Appointment of New Government Czar,” Pam Geller wrote:
More of Obama’s hurry up fascism. The thug presidency continues.
If it is something no president has ever done, you can count on O to do it. If not before November 2012, than certanly afterward. [Atlas Shrugs, 1/4/12]
Fox’s Monica Crowley: “This Is Another Unprecedented Power Grab By This President.” From the January 4 edition of Fox News’ America Live:
MONICA CROWLEY (Fox News contributor): I think this is another unprecedented power grab by this president. Look, there’s a longstanding precedent that says, and is indicated for presidents over many, many decades, that if the Senate is out of session for more than ten days, then the president is allowed to make a recess appointment. What we have here is the president actually not only violating that precedent, Martha, but violating what his own administration argued just about two years ago when their own deputy solicitor general argued to the Supreme Court that the president can’t make this kind of recess appointment if the Senate is out of session for less than three days.
MARTHA MacCALLUM (guest host): Well, Monica, let me ask you — this is sort of the detail issue of this in terms of the big picture. Do you think anything’s going to change? Do you think everyone’s just going to say, OK, this is what happened, or are they going to let it lie?
CROWLEY: Well no, I think Republicans —
MacCallum: They’re going to fight it.
CROWLEY: on Capitol Hill, I think [House Speaker] John Boehner [R-OH], I think they are furious by this because it raises constitutional issues. But look, Martha, here’s the thing: President Obama has never made a mystery of who he is, what he’s intended to do, what his philosophy is. He has told us repeatedly over many months that this is what he was going to do, that he was going to end-run the congress — Democrats and Republicans alike — to get his agenda through. Executive fiat, through bureaucracies, recess appointments. This is just one of the many pieces to the puzzle. [Fox News, America Live, 1/4/12]