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Cordray's Recess Appointment Sure Doesn't Look Constitutional To Me (Written by a Cordray supporter)
The New Republic ^ | January 4, 2012 | Timothy Noah

Posted on 01/04/2012 1:14:10 PM PST by Qbert

I'm no lawyer, but:

As someone who strongly supported a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau, I'm confused as to why President Obama chose to act today. Had he appointed Cordray yesterday, during a brief period when the Senate was technically in recess, the action would have been supported by precedent. Apparently, though, that appointment would have lasted only through 2012. By appointing Cordray today, Obama can keep him at CFPB through 2013.

The trouble is that the Senate isn't in recess. For complicated reasons the Republicans have the ability to prevent the Senate from going into recess, and they have done so in order to maximize the difficulty of Obama making recess appointments. The White House maintains that keeping the Senate in pro forma session is a stupid gimmick, which is certainly true. It further maintains that because it is a stupid gimmick, that gives the president the right to act as though the Senate were in recess. That's the part I have trouble following.

Two high-ranking Justice department officials from the (George W.) Bush administration support the position Obama has taken on the grounds that the executive branch has always maintained a "common-sense view" that the Senate is not in session when nobody's there and it isn't doing anything. But they don't cite any court decisions to back this view up. Instead they rely on a 1905 report (cited on page 8 of this Congressional Research Service report) by the Senate judiciary committee that defines a Senate recess as

the period of the time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments....

The trouble with this definition is that it would define as a Senate recess just about every weekend of the year.

Maybe there's a stronger legal foundation to the president's decision that I don't know about. But based on what I've seen so far, I'm having trouble understanding how the recess appointment of Cordray can possibly withstand a legal challenge. And I'm really having trouble understanding why Obama didn't take advantage of his constitutional window yesterday, when the Senate was inarguably in recess. 

Something else I'm having trouble understanding is why, if Obama was going to cast caution to the wind, he didn't appoint Elizabeth Warren to head CFPB last year. Perhaps he decided she'd be of more use to him as a strong Senate candidate in Massachusetts. Cordray is a good choice, but Warren was a better one.

My fear is that, having beat the Republicans on the payroll tax issue, Obama is now looking for another fight. But--again, based on my limited knowledge thus far--this fight looks like an unnecessary one. I hope Obama hasn't traded his previous vice of timidity for a new vice of recklessness.

Update: 3:25: Brian Beutler of Talking Points Memo, who's done an excellent job reporting on all this, cites a newer CRS report issued in December. But I'm at a loss to find any legal justification for Obama's action in this report either. Nor am I reassured by this issue brief by Ian Millhiser of Think Progress. Millhiser makes a strong case that the level of Senate obstruction at present is unprecedented. But he makes no case at all for why the president should get to decide when the Senate is in recess and when it isn't.

I'm beginning to think that if there were a more solid justification for Obama's action someone would have made it by now.

 

 


TOPICS: Crime/Corruption; Front Page News; Government; News/Current Events
KEYWORDS: bhofascism; cfpb; cordray; democrats; dictator; nobama2012; obama; tyranny

1 posted on 01/04/2012 1:14:13 PM PST by Qbert
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To: Qbert

Wasn’t long ago the Democrats would have one person show up and then go home to keep the Senate “in session”.


2 posted on 01/04/2012 1:17:37 PM PST by VeniVidiVici (Obama's War on Prosperity is killing me)
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To: Qbert
Millhiser makes a strong case that the level of Senate obstruction at present is unprecedented.

Except that it's not. Reid use the same parlimentary methods to keep Bush from making recess appointments during his last year or so in office.

3 posted on 01/04/2012 1:19:04 PM PST by dirtboy
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To: Qbert

What is good for the goose is good for gander....
During the last two years of the George W. Bush administration, Senate Majority Leader Harry Reid prevented any further recess appointments. Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break in November 2007. As a result, Reid did not allow recess of more than three days from then until the end of the Bush presidency by holding pro forma sessions.


4 posted on 01/04/2012 1:19:43 PM PST by An American! (Proud To Be An American!)
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To: Qbert
The Forgotten Man - http://www.mcnaughtonart.com/artwork/view_zoom/?artpiece_id=379


Trampling the Constitution! Where are our patriots in congress?

CUT OFF FUNDING AND IMPEACH
Next Govenor Perry should announce that an directives by these illegal appointments will be ignored by Texas. Newt should jump on the band wagon, Santorum etc etc. This is a huge opportunity for these guys....
5 posted on 01/04/2012 1:23:50 PM PST by An American! (Proud To Be An American!)
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To: All


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6 posted on 01/04/2012 1:29:11 PM PST by musicman (Until I see the REAL Long Form Vault BC, he's just "PRES__ENT" Obama = Without "ID")
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To: Qbert

What constitution??


7 posted on 01/04/2012 1:44:36 PM PST by drypowder
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To: Qbert

If we had REAL Republicans in Congress, they would withhold or deny funding for Obama’s Czars, administration staff and many of his programs ESPECIALLY certain unlawfully acting departments. Is that lawful you say? Who gives a damn anymore!!! I think Newt is the only Republican with the gonads to end this circus. Romney would “compromise” us to insignificance - which is how we got here in the first place.


8 posted on 01/04/2012 1:47:33 PM PST by Dapper 26
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To: Qbert
The people saying that the attempted appointment of the Director the Bureau of Consumer Financial Protection is not valid under the statute (much less the Constitution) seem to be correct.

SEC. 1066. INTERIM AUTHORITY OF THE SECRETARY.
(a) IN GENERAL.—The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011.
(b) INTERIM ADMINISTRATIVE SERVICES BY THE DEPARTMENT OF THE TREASURY.—The Department of the Treasury may provide administrative services necessary to support the Bureau before the designated transfer date.

Source: PUBLIC LAW 111 - 203 - DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT

At the least, it can be argued that the Director cannot perform any of his duties, and they must continue to be performed by the Secretary of the Treasury, until confirmed by the Senate.

9 posted on 01/04/2012 1:49:31 PM PST by Pilsner
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To: Qbert
From the article:

"My fear is that, having beat the Republicans on the payroll tax issue, Obama is now looking for another fight. But--again, based on my limited knowledge thus far--this fight looks like an unnecessary one. I hope Obama hasn't traded his previous vice of timidity for a new vice of recklessness.

A new vice of recklessness? Maybe one chump will finally start to figure this guy out, but I doubt it.

10 posted on 01/04/2012 1:50:20 PM PST by FamiliarFace
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To: Qbert

Even some dems are seeing the lawlessness and unconstitutionalness of this.

This is Hussien’s strategy for 2012: confront and bully the Congress. I don’t think this will work in the long run and I think will blow up in his face politically. The GOP Congress caved on a few things in 2011 but to assume that this will continue up through the election is very presumptuous.


11 posted on 01/04/2012 1:52:37 PM PST by TMA62 (Al Sharpton - The North Korea of race relations)
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To: Qbert
You can take every Republican in the House and Senate and start counting. You would not find a set of balls between them all. They're all 'blow and go'. McConnell will make a speech on the Senate floor, Boehner will have a 2 minute press conference, Orin Hatch will go on Hanniday and then it will all be history the next day.

A few months ago I was ridiculed by a particular Freeper for "wearing a tin-foil hat" when I suggested that if Obama feels he will have trouble getting reelected, he will declare some kind "National Emergency", invoke marshall law, cancel the election and declare himself "temporary president", but "only until he can straighten things out". AND, that he is doing it only to preserve the Constitution.

AND, of course things never "get straightened out".

12 posted on 01/04/2012 1:55:42 PM PST by jmax
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To: Qbert
You can take every Republican in the House and Senate and start counting. You would not find a set of balls between them all. They're all 'blow and go'. McConnell will make a speech on the Senate floor, Boehner will have a 2 minute press conference, Orin Hatch will go on Hanniday and then it will all be history the next day.

A few months ago I was ridiculed by a particular Freeper for "wearing a tin-foil hat" when I suggested that if Obama feels he will have trouble getting reelected, he will declare some kind "National Emergency", invoke marshall law, cancel the election and declare himself "temporary president", but "only until he can straighten things out". AND, that he is doing it only to preserve the Constitution.

AND, of course things never "get straightened out".

13 posted on 01/04/2012 1:56:30 PM PST by jmax
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To: Qbert

It’s not supposed to stand a legal challenge- it’s supposed to help the media make the Republicans look ‘obstructionist’.

To show what a farce it is ‘A’ Senator, just one, should refuse ‘unanimous consent’ until this is disposed of.

The rest can go about ‘business as usual’ depriving Obama’s media of their meme.


14 posted on 01/04/2012 1:59:43 PM PST by mrsmith (Start electing a 'Tea Party' House Speaker in 2012 now!)
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To: Qbert
Doesn't look constitutional to me either. But if you slip it in on a busy news day nobody will notice.

Image and video hosting by TinyPic

15 posted on 01/04/2012 2:18:20 PM PST by newheart (When does policy become treason?)
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To: Pilsner

Thanks for the link, Pilsner.

I wonder what the leftists are going to think when they finally realize that it’s an invalid appointment under the statute, and that Barry has, in a way, played them for fools.


16 posted on 01/04/2012 2:21:50 PM PST by Qbert ("The best defense against usurpatory government is an assertive citizenry" - William F. Buckley, Jr.)
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To: mrsmith

"It’s not supposed to stand a legal challenge- it’s supposed to help the media make the Republicans look ‘obstructionist’."

Yeah, I think this was largely political posturing: He wants this to appear tough before his disheartened, diminishing base, and he wants this to make it look like he's the great defender of the "middle class" (what's left of it after he obliterated it these past three years) against the "evil profiteering exploiters".

17 posted on 01/04/2012 2:36:52 PM PST by Qbert ("The best defense against usurpatory government is an assertive citizenry" - William F. Buckley, Jr.)
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To: Qbert
The time is NOW for the GOP to stop turning the other cheek while genuflecting to the Messiah and get in his face, stop the funding and put everything on hold until Hugo Obama follows the law and precedent.
18 posted on 01/04/2012 2:38:37 PM PST by JPG (Growing old is mandatory; growing up is optional.)
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To: jmax

I tend to think that some sort of the scenario you have mentioned is in store for us some time this year. Obama isn’t even trying to mask what he’s doing anymore. He says he will do what it takes to get things done Congress be damned. He will eventually start rounding up the “trouble-makers” since he can legally do that now and smash down any voices against him. By the time we get our heads out of our proverbial asses it will be all over.


19 posted on 01/04/2012 3:52:07 PM PST by eak3
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To: jmax
[AND, of course things never “get straightened out”.]

I to feel that Obama is not a sociopath, he is a psychopath as many dictators world wide are.
And he may just try to pull a coup, he is crazy enough to try and half of America would take ten years to know it.The dummy dem half.

20 posted on 01/04/2012 5:49:56 PM PST by kindred (wages of sin is death; but the gift of God is eternal life through Jesus Christ ...)
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To: musicman

It still pisses me off every time I see Barry the Imposter in the Oval Office without his suit coat on.

Just plain bad manners.


21 posted on 01/05/2012 9:27:37 AM PST by ridesthemiles
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To: ridesthemiles

22 posted on 01/05/2012 9:42:11 AM PST by musicman (Until I see the REAL Long Form Vault BC, he's just "PRES__ENT" Obama = Without "ID")
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To: Qbert

We are living in interesting times.


23 posted on 01/05/2012 1:47:41 PM PST by neverdem (Xin loi minh oi)
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