Obama Deserves Praise for Keeping GOP in Check
President right to appoint Cordray, block Republican assault on the rule of law
January 6, 2012
In 1933, Congress passed and the president of the United States signed a law creating an agency protecting workers from unfair labor practices. Last year, Congress enacted another law creating an agency to protect consumers from abusive financial service providers. There is one way, and only one constitutional way to eliminate these agencies—Congress must pass a new law repealing their creation. Any other attempt to shut these agencies down is a direct assault on the rule of law.
Unfortunately, however, these agencies cannot operate unless they have duly appointed leaders to run them, so Senate Republicans thought they found a way to make an end run around the Constitution. By filibustering anyone nominated to run these agencies, the Senate GOP tried to shut them down—even though they lack the votes to repeal the agencies through the constitutionally permissible process.
Fortunately, the Constitution also provides President Obama with a way to protect the rule of law against this lawless and unprecedented tactic. Under our Constitution, the president has the power to make recess appointments when, as Alexander Hamilton explained, the Senate is not in "session for the appointment of officers." Right now, the Senate is not around to confirm nominees of any kind—indeed it hasn't been so since December 23. So there is simply no question that President Obama has the authority to make recess appointments.
Senate Republicans sought to defeat Obama's recess power by forcing a single senator to show up every three days and hold a pretend session that lasts no longer than a few seconds. But the president does not lose his constitutional authority simply because the Senate holds a meeting in the Neighborhood of Make Believe. As two of President George W. Bush's top constitutional advisers recently explained, during these sham sessions "no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in 'recess' for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions."
President Obama deserves a great deal of praise for announcing these recess appointments this week. By using the power the framers of our Constitution gave him, he shut down an underhanded effort to lash out at American workers and consumers and he beat back a direct assault on the rule of law.