President to Use Recess Appointment Powers to Appoint a Head to New Consumer Protection Industry

Republicans Will Be Furious – A Nice By-Product of Getting the Agency a Director

The Constitution allows the President to by-pass the Senate confirmation process in the event that the Senate is not in session.  This is termed a “recess” appointment, and the appointment lasts only until the end of the legislative session.  Presidents of both parties have used this process to appoint individuals to high government jobs when the Senate refused to do so, or in most cases, refused to even have a vote on the nomination.

To prevent this, the Senate Republicans have maintained the Senate in a sham session, so that technically they can claim the Senate has not recessed and any recess appointments are invalid. (Democrats have done this also in the past, petty political bickering is not the province of a single party).  The President, to his great credit has decided to disregard this sham and will appoint former Ohio Attorney General Richard Cordray to head the agency.

President Obama is scheduled to announce the decision during anappearance in Cordray’s home state of Ohio, where he served as attorney general until losing his reelection bid in November 2010. The president will portay his decision as an escalation of the White House’s “we can’t wait” campaign to take action that does not require congressional approval.

The report notes the unusual nature of this appointment and the clash it will create between Senators and the White House

The White House determined that it may make an unprecedented recess appointment of Cordray even though the Senate remains in pro forma session. Obama is essentially declaring that session a gimmick designed to stymie the administration.

The action is likely to infuriate the Republican legislators who do not want Cordray to lead the agency. The Consumer Financial Protection Bureau was created under Dodd-Frank legislation to oversee mortgage companies, payday lenders and debt collectors, among others.

Now the position of The Dismal Political Economist is that the Senate confirmation process should not be circumvented by a recess appointment in the event the Senate votes down a candidate.  If the Senate follows its Constitutional responsibility by rejecting a nominee, the nominee should stay rejected.

But that is not the case here.  Republicans are simply blocking a vote on the nominee, a vote that if it were held would result in confirmation.  So if the Senate denies a vote then it would seem the use of a recess appointment is entirely right and proper.  This principle should hold for whoever is in the White House.  A President is entitled to have his management team in place;  if the voters don’t like that team they can vote the President and his team out of office.

Furthermore, in this case the opposition to Mr. Cordray is not based on his qualification.

In rejecting Cordray’s appointment, Senate Republicans said they were challenging the structure of the agency’s oversight, which they argue should be overseen by a five-member commission.

But if they want to change things they need to change the law that created the agency.  Of course adherence to the law and its procedures doesn’t mean much to a group whose ideology is so strong they would disregard the law in an attempt to impose their view on an electorate that at least for now, rejected that view.  But not to worry, if Republicans gain control of the White House and Democrats try to block executive appointments (they shouldn’t, but that won’t stop them from trying) the Republicans will suddenly discover the virtues of playing by the rules.