Sources suggest that the president is going to go ahead and appoint Richard Cordray to appoint the new regulatory behemoth called the Consumer Financial Protection Bureau. He will do this as a recess appointment, despite the fact that the Senate isn’t in recess. My colleague John Berlau has the details at Openmarket:
During the 2007-08 pro forma session, as noted by the nonpartisan Congressional Research Service and reported by Politico, President Bush “made no recess appointments between [Democrats’] initial pro forma sessions in November 2007 and the end of his presidency.”
President Obama arguably had a window yesterday in the few seconds between the first and second session of Congress, but didn’t exercise this opportunity. If he appoints Cordray now, he sets a precedent that Democrats and critics of the “Imperial Presidency” will likely regret the next time there is a Republican president and Democrats control one or both houses of Congress. If any adjournment or break the Senate takes can be defined as “recess,” can the president make appointments when the Senate is in formal session and gavels out for the evening? Our long-held tradition of checks and balances advises strongly against going down this road.
And, in this case, the CFPB itself shatters precedents, as well as specific Constitutional provisions, on checks and balances in regulatory agencies. Once a director is appointed, Congress has no effective oversight of the bureau through the appropriations process, as it does with other agencies.
As John implies, this appointment is doubly offensive to the Constitution, snubbing Congress and usurping it in one stroke. I humbly suggest that it is time for the conservative movement to focus on what the president is doing here.