Obama's Recess Appointments Are UnConstitutional And An Abuse of Power

Today in Washington, D.C. - Jan. 4, 2010
President Obama in a controversial move choose to unconstitutionally bypass the Senate and install Richard Cordray to run the CFPB and to make three recess appoints to the National Labor Relations Board (NLRB). Note the U.S. Senate has remained in session meeting in pro forma sessions to prevent such an action. This action by President Obama is a destructive example of the President trying to govern without Congress. There are now constitutional as well as political questions revolving around this issue.

As background, the Senate has been meeting in a series of pro forma session to prevent President Obama from making any recess appointments. They in fact met yesterday, January 3rd and will be meeting again on January 6, 10, 13, 17, and 20. This action was taken because of the President's controversial actions of making recess appointments of candidates in his administration who were not confirmed by the Senate due to their radical beliefs outside main stream America or disqualifying actions and prior positions.

Flashback: President Obama Formerly Called Recess Appointments ‘The Wrong Thing To Do,’ And Senior Democrats Have Argued They Are An ‘Abuse Of Power, Mischievous And Troubling’
THEN-SEN. BARACK OBAMA (D-IL): Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05)

·    OBAMA: A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he's damaged goods… somebody who couldn't get through a nomination in the Senate. And I think that that means that we will have less credibility...” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

SEN. HARRY REID (D-NV): ‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07)

·    REID: ‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don't let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)

·    REID: Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

·    REID: A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

SEN. DICK DURBIN (D-IL): ‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he's going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

·    DURBIN: ‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor's recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05)

SEN. JOHN KERRY (D-MA): Recess appointments an ‘abuse [of] the power of the presidency.’ “‘It’s sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,’ Kerry said in a statement ...” (“Recess Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The Washington Post, 4/5/07)

SEN. FRANK LAUTENBERG (D-NJ): “…bends the rules and circumvents the will of Congress.” (“President Sends Bolton to U.N.; Bypasses Senate,” The New York Times, 8/2/05)

SEN. MAX BAUCUS (D-MT): “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered…” in a statement reminds the public that the CFPB’s big problems are its lack of transparency and accountability:

"[A]n unreformed, unaccountable CFPB would threaten our recovery at the worst possible time. The current structure of the CFPB will breed uncertainty, restrict credit, and stifle innovation when we need it most.

The fixes are obvious and necessary. First, the CFPB is exempt from nearly all the checks and balances that keep other independent regulatory bodies, like the Consumer Product Safety Commission, transparent and accountable. The CFPB is led by a single, powerful director—the agency’s only Senate-approved position. Its top post carries a five-year term, and the director can’t be fired, even by the president, outside of extraordinary circumstances. The CFPB’s power should be decentralized through a bipartisan panel of commissioners, ensuring balanced debate and a diversity of viewpoints.

Second, that powerful director controls an annual budget exceeding $500 million. Neither Congress nor the administration has any say on how that money is spent. This needs to change. The CFPB’s budget must be submitted to Congress to ensure oversight of the agency’s spending and policy priorities.

Third, the CFPB has been empowered to ban or change financial services or products without sufficient coordination with federal banking regulators. That means so-called consumer protections could come at the cost of financial institutions’ stability. And if banks are pushed into failure by new rules, the collateral damage will hit consumers. There must be a meaningful safety and soundness check that will factor in the impact of the CFPB’s rules.

Senator John Boozman (R-AR) who generally mild in his responses said today that President Obama committed a “gross overstep” with today’s unprecedented recess appointment of Richard Cordray as director of the new Consumer Financial Protection Board (CFPB), a move made for the first time while the Senate is in “pro forma” session.

“This is a gross overstep by the President. Steamrolling the Constitution and rewriting the rules when you don’t get your way is not how democracy works. We have a system of checks and balances that President Obama has failed to respect through this abuse of power.

"Last month, Mr. Cordray’s nomination was taken up in the Senate and was not approved. I joined my colleagues in opposition, not on the basis of Mr. Cordray’s personal merits, but over concerns about the structure of this new agency. The Dodd-Frank Law has given the CFPB enormous powers with little to no accountability. Instead of working with us to fix this defectively structured agency, the President has chosen to continue his misguided practice of circumventing Congress.”

The CFPB was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act, which President Obama signed into law last year. As a former member of the U.S. House of Representatives, Boozman voted against that bill because it would create permanent bailouts, reward failed regulators and make it more difficult for consumers to access credit.

U.S. Senator Orrin Hatch (R-UT) issued the following statement: "Today, the White House doubled down on its assault on the Constitution’s separation of powers – circumventing the people’s representatives in Congress - by not only appointing a new regulatory czar, but also new bureaucrats to the National Labor Relations Board to placate its big labor allies. The President put his own political future and the radical views of his far-left base ahead of constitutional government. The President will have to answer to the American people for this power grab."

The Heritage Foundation identified, "There’s just one problem: The U.S. Senate is not in recess. The decision to appoint these officials nonetheless appears to contradict the Obama administration’s own stated position on the issue.

According to Obama’s own Justice Department, the president is in the wrong. During a 2010 Supreme Court hearing, Chief Justice John Roberts and Deputy Solicitor General Neal Katyal had this exchange, in which the latter admitted that recess appointments may not be made within three days of adjournment."

It has become very clear that President Obama wants to continue the status quo: more spending, bigger government, and less freedom. And, he is part of a Washington Establishment that undermines conservatives at every turn.
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Related Articles:
Obama DOJ Undercuts President’s ‘Recess’ Appointment Stunt
Flashback: Senator Outlines Objections to ‘Unaccountable’ Consumer Czar
An Unaccountable CFPB Threatens Recovery

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