Separation of powers

by Nicole Flatow

President Obama plans to appoint Richard Cordray today to lead the Consumer Financial Protection Bureau, flouting Republican attempts to block Cordray’s confirmation through procedural tactics.

The new consumer watchdog agency has been without a leader since it began operating in July, and it cannot perform several of its most central functions without a director. Senate Republicans have opposed Cordray’s nomination because they advocate fundamental change to the structure of the agency, not because they object to Cordray’s nomination.

“[W]e can’t wait for Republicans in the Senate to act,” White House Communications Director Dan Pfeiffer said in a statement today. “… Because of the President’s leadership and decisive action, the American people will have a consumer watchdog fighting tooth and nail on their behalf.  … Today’s announcement is a critical piece to strengthen the economy and restore the economic security for the middle class and those trying to reach it.”

Obama is installing Cordray through his constitutional power to make temporary appointments to vacant seats while Congress is out of session. Legislators had attempted to block Obama’s use of that power by holding “pro forma” sessions every few days throughout the winter break, purportedly preventing a formal “recess” from occurring.

But Pfeiffer called this effort by Senate Republicans a “gimmick” that does not “override the President’s constitutional authority to make appointments to keep the government running.”

“Legal experts agree,” he adds, pointing to a 2010 Washington Post op-ed by two lawyers who advised President George W. Bush on recess appointments. They wrote:

by Nicole Flatow

Passage of a balanced budget amendment would “threaten to tear irrevocably the fabric of our constitutional structure,” warns separation of powers expert Neil Kinkopf in a new ACS Issue Brief.

With the House of Representatives set to vote on a balanced budget amendment proposal this week, Kinkopf’s Issue Brief explains the dangers of inserting policy prescriptions into our founding document.

Kinkopf, a law professor at the Georgia State University, notes that only once in our history did the Constitution dictate an outcome, when the 18th Amendment was passed, but “[s]uch a failure was this deviation from the Constitution’s design that it stands as the only amendment ever to be repealed.”

“The founding generation faced divisive controversies that were every bit as momentous as the present-day budget crisis," Kinkopf writes. "Yet they consciously designed the Constitution not to resolve these issues, instead leaving them to be resolved through the constitutionally ordained process of legislation in compliance with constitutionally guaranteed individual rights.”