Bench Memos

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The ‘Recess’ Appointments: A Crisis of Convenience



Is anyone really surprised that President Obama chose to provoke a major confrontation with Senate Republicans by making “recess” appointments to the CFPB and NLRB? The president’s decision has certainly raised some very interesting legal questions. A growing number of constitutional scholars, and even some folks on the left, are making a compelling case that the appointments were unlawful. But this is about November, not minority obstruction or even any policy debate.

If this weren’t a cynical election-year ploy, President Obama could have made these appointments just a short time later. As even David Arkush of the left-leaning, anti-corporate organization Public Citizen has argued, Obama could have made his appointments after using his Article II, Section III power to adjourn both houses of Congress. In short, this was a controversy of convenience.

The appointment of Richard Cordray was a transparent move to excite the Occupy Wall Street crowd and credential himself as a disciple of Huey Long. What’s next, displaying his shoes to crowds to show them that, unlike Mitt Romney, his have holes in them? That’ll put the plutocrats in their place!

While Republicans and conservatives are forced to defend complicated positions regarding the rule of law, President Obama brags about his new Wall Street Cop . . . from Ohio. The Right will successfully define terms like intra-session, inter-session, and “recess,” but the president will present folks with a binary choice between a world where Wall Street’s wizards of high finance are supervised and one where they use tax dollars to pay themselves extravagant bonuses. You don’t need a poll to show how this will play in Peoria.

Of course, that binary choice is absurd. Republicans oppose Cordray’s nomination because President Obama and Senate Democrats continue to reject reasonable reforms that would bring the CFPB in line with other federal agencies and make it more accountable to the American people. Just as they did with Obamacare, Dodd-Frank’s authors took extraordinary steps to ensure that the CFPB avoids the traditional limits on government power that characterize our constitutional system. As Boyden Gray explained in a statement circulated yesterday:

The CFPB is insulated from each of the three branches of government that have a constitutional duty to oversee it. It is independently funded and consequently subject to no budget review, and no meaningful Congressional oversight. And because Dodd-Frank protects the CFPB Director against removal by the president, the next president would not be able to remove a Senate-confirmed CFPB Director at will. Finally, there is extremely limited judicial review of the CFPB’s actions.

So a former politician with unprecedented and virtually unchecked power will decide how and when credit is allocated in the United States. Should hard-working Americans have access to home loans, college loans, and credit cards? On what terms? What if I want to pay a lower interest rate on my mortgage in exchange for other terms that are more favorable to the lending bank? You’ll have to ask the head of the CFPB.

President Obama is building and insulating a legal structure that will make it easier for him, his allies, and his predecessors to use the national government’s resources to accommodate favored parties. A nicer, more “progressive” way of saying it might be to say that he is making our government more efficient for “experts” to manage. In the end, President Obama is just checking constituency boxes. The Obamacare mandate takes care of the insurance industry, the NLRB takes care of the unions, and Dodd-Frank makes big bank bailouts our official policy. Judging by the president’s standard operating procedure, you should expect future winners to be his campaign supporters and the losers to be, well, the rest of us

— Ammon Simon is a policy counsel at the Judicial Crisis Network and former president of the Columbia Law School Republicans and the Columbia Law Students for Life.


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