With Recess Appointments, the President Calls the GOP's Bluff

By Daily Editorials

January 6, 2012 4 min read

With long overdue defiance, President Barack Obama on Wednesday named former Ohio Attorney General Richard Cordray to be director of the new Consumer Financial Protection Bureau. Hours later, he appointed Sharon Block, Terence Flynn and Richard Griffin to fill three vacancies on the National Labor Relations Board, which would have had to cease operations without new members to constitute a quorum.

All are recess appointments, which the Constitution authorizes presidents to make when Congress is not in session. They do not require Senate confirmation; the appointees may serve until year's end. The president formally nominated Cordray in July, but Senate Republicans used the threat of a filibuster to prevent a confirmation vote.

Although the CFPB began operating last year, the law requires it to have a director in place before issuing rules to protect consumers from abuses by payday loan operations, commercial student loan providers, mortgage servicers and other credit-related companies.

Republicans had tried but failed to defeat the legislation that created the CFPB in 2010; it was opposed intensely by the banking and financial services industries.

Last year, Senate Republicans adopted the role of sore losers: In a May 5 letter to the president, they vowed that they would "not support the consideration of any nominee, regardless of party affiliation, to be the CFPB director" unless Democrats agreed to new legislation that essentially would prevent the agency from protecting consumers from predatory practices. They later made clear that they would not approve NLRB nominees, either.

Republicans concocted a holiday season farce, so-called pro-forma sessions, to mask the fact that Senate members had gone home. The goal was to prevent Obama from making recess appointments; a similar scam by Democrats in 2007 had denied recess appointments to then-President George W. Bush.

But on Wednesday, the president called the Republicans' bluff. He made the four recess appointments anyway.

As welcome as his assertiveness is in the face of unrelenting Republican intransigence, Obama is playing a risky game. Most directly, Republicans could ask a federal court to rule that the Senate really was in session and invalidate the appointments. But a court could declare that the Republicans' pro-forma gambit was mere trickery.

In any case, the president's other executive appointments, which barely had been creeping through the Senate confirmation process, now will grind to a halt.

His federal judicial appointments will go nowhere, leaving 86 unfilled vacancies in the 11 federal circuits and the District of Columbia at the trial and appeals levels, with sitting judges straining under ever-mounting caseloads and backlogs.

Another casualty will be S. 679, the Presidential Appointment Efficiency and Streamlining Act of 2011. The bipartisan bill exempts some 170 executive positions in departments, agencies and advisory boards from mandatory Senate confirmation.

It passed the Senate in July with a remarkable majority of 79 yes votes to 20 no votes, and there was some confidence that the House would respond likewise, even in an election year. Now — no way.

Barring a successful court challenge, the appointments to the CFPB and the NLRB will let those bodies do the work they were intended to do. It's also gratifying to see this president strike a blow against gridlock, although he surely should have done so sooner.

In the end, Obama seems to have calculated that nothing he did would produce Republican cooperation. He was right.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH

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