Apparently President Obama has decided that playing patty cake with Republican senators is no longer a winning proposition, and he now plans to make a recess appointment of Richard Cordray to head up the new Consumer Financial Protection Bureau despite the fact that the Senate is technically in a “pro forma session” and hasn’t recessed. Politically, this is pretty defensible: Senate Republicans have refused to allow a vote on Cordray not because of any problems with Cordray himself, but because they simply want to prevent the CFPB from functioning. They’re opposed to any CFPB head. Since the CFPB was created by a vote of Congress and the signature of the president, this is little more than modern-day nullification.
But even if this is politically defensible, is it also legally defensible? The Wall Street Journal reports:
White House attorneys have concluded they have the legal authority to make a recess appointment despite Republican efforts to block the move, Democrats said Tuesday, and administration officials say they reserve the option to install Richard Cordray as head of the new Consumer Financial Protection Bureau without Senate approval.
….The White House has concluded that it can make the appointment even if the Senate has not formally recessed, said one Democrat familiar with White House thinking. “They have decided no one can stop them.”
This all sounds fine to me, since I think the pro forma sessions are nothing more than a sham. But I also hope that Obama makes his legal reasoning public. This is, after all, a unilateral declaration of expanded executive power, and we’ve had way too many of those in recent years based on shoddy legal justifications that were kept secret. Obama’s decision may end up in court, where his legal reasoning will become public regardless, but I hope he doesn’t wait for that. If White House lawyers have written a brief justifying Cordray’s appointment, let’s make it public and allow everyone to see it.