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:
The Senate cannot constitutionally thwart the president's recess appointment power through pro forma sessions.
And in a more recent article in Jurist, Catholic University law professor Victor Williams asserts:
President Obama should renounce congressional "pro forma sessions" with a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.
Now, Obama’s own lawyers have established that he has the legal authority to make such appointments, The Hill reports today.
Obama is scheduled to announce Cordray’s appointment during a well-timed visit to Cordray’s home state of Ohio. But Cordray is not the only nominee overdue for confirmation.
The Senate’s failure to confirm nominees to the National Labor Relations Board has left the entity without the quorum needed to legally operate, as defined by the U.S. Supreme Court last year.
And on the federal courts, an alarming 85 seats are empty. The Senate had the opportunity before it left town to immediately confirm 21 judicial nominees that had been fully vetted, but it declined to do so in spite of a continuing vacancy crisis on the federal bench.
In all, Senate Majority Leader Harry Reid had moved to quickly dispense with more than 50 nominees ripe for an immediate Senate vote before the winter break. Minority Leader Mitch McConnell blocked up-or-down votes on all of them, saying that he would not agree to any confirmations without assurances from President Obama that he would not make any appointments during the winter break.
UNC law professor Michael Gerhardt, who coauthored an ACS Issue Brief on judicial nominations reform, told Politico this week that Obama has little to lose and much to gain by making these recess appointments.
Because obstruction has already been rampant, GOP threats of more obstruction should mean little to Obama and should “liberate him to do the right thing as he sees it,” Gerhardt said.
Read Gerhardt’s ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform,” coauthored by the University of Minnesota Law School’s Richard Painter, here.