Republicans are up in arms over President Obama's not-exactly-recess appointment of Richard Cordray to head the newly-created Consumer Financial Protection Bureau, and they have a strong point. It does appear to be unprecedented. Presidents are allowed to make "recess appointments" when the Senate—which must confirm such appointments—is in recess. And while the U.S. Senate isn't exactly around campus this month, the body has been technically kept in session with a once-every-three-days pro forma session. Circumventing the Senate by appointing Cordray when the Senate is not even technically in recess is indeed an audacious move.
But what choice did Obama have? The Senate refused to confirm Elizabeth Warren to the post, and for no other real reason than that Republicans don't like the Dodd-Frank financial regulatory reform law and don't like the Consumer Financial Protection Bureau it created. Since they weren't able to recreate the bureau the way they wanted it—or eliminate it completely—they have been keeping the new entity from doing its work by denying the administration the opportunity to hire someone to run the operation. Warren gave up the fight, and the GOP's stubbornness may come back to haunt them: Warren is well-positioned to become the Democratic nominee for Senate in Massachusetts, and if she is nominated, she would be a strong challenger to GOP Sen. Scott Brown. And the stakes are not limited to the Bay State. The fate of that election could well determine whether the GOP takes back control of the U.S. Senate.
Cordray was the next pick, but he, too, faced filibuster threats from the minority party. The message has been fairly clear: either weaken the bureau or you won't have the personnel to run it. It's legislative hostage-taking, and it's arguably much more insidious an abuse of authority than making a recess appointment when there isn't really a recess.
Republican National Committee Chairman Reince Priebus slammed the president for his behavior, noting that:
By circumventing Congress, the president has violated the fundamental principle of checks and balances. Once again, he has proven that no American law or value is sacred in his pursuit of a radical liberal agenda.
Point taken. But preventing the president from putting his own people in senior jobs, absent legitimate questions about the nominee's qualifications, subverts the separation of powers as well.