When President Barack Obama recess appointed Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) and three members of the National Labor Relations Board (NLRB), he ignited a controversy between Democrats and Republicans that could grow into a Constitutional crisis. Many Republicans are saying that Obama has trashed the Constitution. Many Democrats are saying that Obama’s appointments are no different that the the recess appointments by previous Presidents. Both sides are wrong. Here is why.
The President has the authority to make recess appointments when the Senate is not in session for fifteen days or more. Otherwise, he is required to submit his nominees for the Senate to advise and consent.
We are currently in the month called the Christmas Recess, but Republicans have have held a pro-forma session, a session lasting for seconds only, every three days. They have announced that there will no business conducted in these sessions. It is their position that, since the Senate has not had fifteen days when it was out of session, Obama’s appointments are not legal. They are correct that, in 2007, Democrats used the same tactic to block the recess appointment of John Bolton, the extreme Neocon who violently opposed the UN, as US Ambassador to the UN.
It is Obama’s position that pro-forma sessions are not legitimate sessions, because b Republicans did state they have no intent to conduct business, and therefore, pro-forma sessions cannot count against the fifteen day requirement. If effect, Obama has been saying that the Senate has been out of session the entire time, making his appointments legal.
This is different from recess appointments Republicans have made, because Obama’s justification is unique, having never been used before. But the Republican claim that Obama is trashing the Constitution is equally untrue. Obama is not trashing the Constitution, because there is no precedent to determine the constitutionality of the act.
So the constitutional question here is whether or not a mere pro-forma session is legitimate for the purpose of obstructing Presidential recess appointments during a recess that is longer than fifteen days.
To make a legal challenge to this Republicans must correctly cast themselves in the role of favoring their own obstruction of legitimate functions of government in order to assist corporate criminals to prey on American consumers and to assist other criminal corporate criminals to deny workers’ rights. They have foolishly painted themselves into another corner.
That said, I cannot say how such a challenge might come out, but I could not be more pleased that Obama has thrown down this gauntlet.
To further explain, here is Lawrence O’Donnell’s take on it, including his interview with new CFPB Director, Richard Cordray.
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Please take special note of Elizabeth Warren’s two segments in the video. Also note that a Republican administration could appoint a CFPB Director that could transform the CFPB into a tool to assist Banksters in their predations on the 99%. This is one more reason that keeping Republicans out of the White House is a generational imperative.
16 Responses to “The Cordray Controversy Explained”
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I believe Warren said that Obama has been fighing them on these issues as soon as he walked in the door. They may have been part of the reason they were so againist Warren being head of the CFPB. But as usual there was alittle to it than. They do donot want anyone standing in the way of riping off America. Obama stood his ground and wouldnot give in to the republians. Obama had no choice but to take the steps he took. The republians are crying foul again lol. The rebulian presidents before him have apointed in recess and have played down and dirty far more times than Obama. This was the American people and the republians will not stand for it. This is just one more reason that the republians are the pary of NO NO NO and why they are afraid. They have spent the last 3 yrs playing a game they can not win. Obama will out smart them all and that is why Obama was the man to fight them.
Mama, that’s pretty good analysis, except for the question on whether or not SCROTUS (the five fascists on SCOTUS) rubber stamp the sham pro-forma sessions.
Tom Cat — To make a legal challenge to this Republicans must correctly cast themselves in the role of favoring their own obstruction of legitimate functions of government in order to assist corporate criminals to prey on American consumers and to assist other criminal corporate criminals to deny workers’ rights. They have foolishly painted themselves into another corner.
Next, Republican/Teabaggers will claim that Mr Obama manoeuvred them into this position of looking ridiculous and painted into a corner. No wonder Boehner was crying in that picture yesterday, he just got paint on his Armani suit and Versace shoes! Oh well, he’s a millionaire and can afford a new suit and pair of shoes unlike thousands upon thousands of others who can’t.
I was quite impressed with Richard Cordray and how he talked about serving the people. Plain talk and sincere. I didn’t detect any hedging in him. And Elizabeth Warren was so effusive in her support of him.
Great article TC and the graphics at the beginning are great — “The Government Agency That Kicks Ass.”
Lynn, whatever stupidity they commit or perfidy that get caught doing is always Obama’s fault.
Cordray impressed me too.
I can’t take credit for the graphic, as I didn’t create it.
Harvard Constitutional Law Professor, Laurence Tribe, has a fantastic editorial in Thursday’s “New York Times” detailing the legal reasoning that will allow a “slam dunk” for the President to prevail:
Nameless, I agree that the legal reasoning was slam dunk, but co was the legal reasoning in opposition to the way SCROTUS decided Citizens United,
Where were these supposed Constitution-loving Republicans when Bush and Cheney TRASHEED the Constitution with their ridiulous Patriot Act and subsequent suspension of the writ of habeus corpus? Or when Bush TRASHED the Constitution by recess-appointing that crazy ideologue John Bolton to be Permanent Representative to the U.N.? Their silence on these matters was deafening, and their hypocrisy on yhe constitutionality of Cordray’s appointment is disgustingly all too apparent.
Jack, I agree. The Republicans are the party of Constitutional Convenience. It says whatever they want it to say at the moment, and can say the exact opposite when the beneficiaries are reversed.
A great report Tom, Cordray got an impressive show of support from Warren – and this curmudgeon (me) is beginning to soften – this is a challenge to both parties to respect the intention of the Constitution and be guided by its principles – which would be rather refreshing if done!
I can just picture the “pro forma” sessions on the phone “do we have a forum”? “Great! Have a nice holiday – goin’ huntin today so let’s finish up! Meetin’ adjourned! – good session!” Love the way our taxes are being spent!!!!
Have to hand it to these conniving SOB’s though – they know how to make a buck and keep the dems impotent! It’s nice to have good news now and then!
It’s nice to see Dems playing hardball for a change.
Thanks, Tom, for this discussion point. Lawrence pointed out that Cordray received 53 votes from Congress. Can you explain (probably ‘again’) why 53 votes did work as a majority of 100 votes?? If the vote was taken and 53 resulted, it was not ‘filibustered’ so that a vote wouldn’t be taken at all. I’m confused. I certainly think Obama has done the right thing to make this recess appointment. There wasn’t a true session being held, obviously. And even though both parties have done this pro forma session trick before, it’s time things started getting real instead of pure manipulation and ill-will toward men (and women). So Obama is right to challenge it now. My problem is that as soon as I think our President is going along with way too many of the opposition’s edicts and ploys, he comes up with this. Do we really know how he wants this fight to end? Does he want the pro forma crap to end or does he want it to prevail? What’s your guess? Thanks again, TomCat.
Sure Caity. Republicans filibustered Cordray’s appointment requiring 60 votes to pass, so a majority was not enough. Republicans have filibustered almost everything to come before the Senate in the last three years. Getting by the filibister is the reason Democrats have given in to so much of what Republicans wanted. Either pro forma crap ends now or Presidents od both parties will have lost their Constitutional right to make recess appointments.
Thanks, Tom. I’d forgotten that the filibuster is just a one-liner instead of the long, drawn-out thing it used to be. It’s so common now that it’s hardly reported any longer. What a shame…another one…for this country’s government.
I agree. Unfortunately we could not change the rules last January, because Lieberman, Nelson, Landrieu and Conrad would not support the change, gibing The Republicans 52 votes on the rule change.
Their pro forma sessions lasted an average of 30 seconds. What BS!
Patty, to be fair, it was equally BS when we did it in 2007.