Between this and The One waging war in Libya without congressional approval — a move which his own lawyers found dubious, I remind you — I’m thinking the GOP really needs to run a guy next year with a less expansive view of executive authority. How about Dick Cheney?
The president used his power to name Sharon Block, Terence Flynn and Richard Griffin to the board, which arbitrates workplace disputes and federal labor issues. The controversial board — which drew fire from Republicans after its acting general counsel sided with an aircraft workers’ union in a dispute with aerospace giant Boeing — was in danger of becoming inactive when the term of Craig Becker, another Obama recess appointee, expired last month, depriving it of a quorum.
Block and Flynn are Democrats, while Griffin is a Republican.
“The American people deserve to have qualified public servants fighting for them every day – whether it is to enforce new consumer protections or uphold the rights of working Americans,” Obama said in a statement. “We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”
Labor unions, whose relationship with Obama had been strained recently, cheered the move.
Why would O risk a constitutional confrontation with Congress over something as minor as the NLRB or his new consumer board? Why, for the same reason he does everything: Because it might help him get re-elected. He’s going to run against a “do-nothing Congress” next year so he needs some dramatic examples of him heroically defying GOP obstructionism to serve the public good. And if that means taking a dump on the Constitution to help labor and impress middle-class voters, well, that’s just what strong, blue-collar presidents have to do sometimes. The legal argument against what he’s doing couldn’t be simpler, as David Freddoso explains. Essentially, Obama’s claiming that he gets to decide whether pro forma sessions of the Senate amount to real sessions for purposes of recess appointments; that sure sounds like a violation of separation of powers insofar as each branch typically sets its own rules, but the beauty of this maneuver from Obama’s perspective is that he probably can’t be sued over it. Federal courts will refuse to rule on certain turf-war disputes between the executive and the legislature on grounds that they represent a “political question” that should be decided by voters, not by judges. I’m not sure if that’ll apply here — what happens when someone ends up suing Cordray on the theory that he was never constitutionally appointed? — but that’s what The One’s counting on.
So shameless is this power grab, in fact, that even John Yoo, whose name is a curse word on the left when it comes to executive overreach, thinks Obama went too far. Lefty Timothy Noah, who supports Cordray’s appointment, candidly admitted today at TNR that he can’t figure out how this could possibly be constitutional. (If Obama has the power to define when the Senate is and isn’t in recess, writes Noah, then he could theoretically treat every weekend of the year as a recess.) In fact, according to Mark Calabria at Cato, not only does the Cordray appointment flout the Constitution, it actually violates the terms of the Dodd-Frank statute pushed through by O’s own party:
More importantly the “recess” appointment of Cordray doesn’t solve the President’s problem. The Dodd-Frank Act is very clear, even a law professor can probably under this section, that authorities under the Act remain with the Treasury Secretary until the Director is “confirmed by the Senate”. A recess appointment is not a Senate confirmation. Now don’t ask me why Dodd and Frank included such unusual language, they could have just given the Bureau the new authorities, but they didn’t. So even with this appointment, the CFPB won’t be able to go after all those non-banks, like the pay-day lenders and check-cashiers that caused the financial crisis (oh wait, those industries didn’t have anything to do with the crisis).
Meanwhile, Iain Murray at National Review reminds us that the names of the three NLRB appointees were only sent to the Senate three weeks ago. They haven’t been filibustered, so there’s no obstruction — yet. So eager is President Working Class Hero to start off an election year by defying Congress that he picked this fight before he had to.
Via CNS, here’s Carney warning the press corps yesterday that Obama was prepared to engage in unilateral executive action “small, medium, and large” to push his agenda. Let’s put this power grab in the “medium” category; “large” is reserved for wars like Libya that he’s undertaken without so much as a resolution of good luck from Congress. The more I think about this, the more it smells like O’s version of FDR’s court-packing plan, except (a) this is more constitutionally dubious and (b) this is transparently a cheap election-year pander. Exit question: What will the next Republican president use this exciting new precedent for, pray tell?
Update: Via Free Republic, enjoy this 2008 AP story describing how Democrats successfully used pro forma Senate sessions to block evil monarchical lawless cowboy president George W. Bush from making recess appointments of his own.
Update: Corrected a typo in the post above.