Will the Senate No Longer Confirm?

With President Obama’s latest power grab – the bypassing of the Senate to “recess” appoint Richard Cordray to lead the Consumer Financial Protection Bureau (CFPB) and three members to the National Labor Relations Board (NLRB) – comes many questions as to the Senate’s future role in the confirmation process.

If a President can “recess” appoint while the Senate is technically still in session, then he can appoint anyone to any position at almost any time the Senate is not physically in the chamber, like when they go home for the night or break for party lunches. The Senate is currently in pro forma session, and they can pass laws. The Senate began their pro forma session on December 17th, but on December 23rd, the Senate passed the payroll tax cut extension. If pro forma session means nothing and can simply be ignored, how does President Obama explain the fact that this extension passed during such a session?

Not only that, but in the Dodd-Frank bill which created the CFPB, it explicitly says that Cordray’s position must be confirmed by the Senate. So not only did President Obama ignore the pro forma session, but he ignored the law – his own law! These two points will make Richard Cordray’s appointment open for challenge, further confusing the business community because we now don’t know if any of the regulations Cordray passes will even be upheld. According to the chief of staff to former Senator Bill Frist, Eric Ueland:

“If his position is ever upheld, it gives any president of any party at any time the undiluted power of naming any person to any position in the federal government.”

Of course, President Obama’s White House counsel, Kathryn Ruemmler, disagreed with Mr. Ueland, saying that his assumptions were “belied by the Constitution, precedent and history.”

Seriously? Because President Obama just threw out decades of precedent in order to appoint Richard Cordray. How are we supposed to know how far this will go and when it will stop since we have no history of it? Ms. Ruemmler went on to say:

“The Senate is functionally in recess. The Senate minority cannot by procedural trick and from an empty chamber prevent the president from performing his constitutional duties.”

But that’s exactly what Senate Majority Leader Harry Reid (D-NV) did during George W. Bush’s presidency. How is it that the media continues to ignore such hypocrisy and protect President Obama?

Two of the members appointed to the NLRB didn’t even go through the standard background checks required by members of the board. A Senate committee is supposed to vet the nominees, but never received the necessary paperwork. Essentially, President Obama installed these members without even giving the Senate a fair chance. Whether he knew they would never be nominated or not is not the point, he didn’t even try. Can you imagine if a Republican President did such a thing?

Where do we go from here? While the White House is not specifically saying they will “recess” appoint more nominees in this way, they’re not explicitly ruling it out either. Just like with the individual mandate, the question of how far this precedent will go remains unanswered. According to our own Communications Director, Dan Holler:

“It is this flagrant violation of the separation of powers that deserves more scrutiny. Absent appropriate legal, legislative and public pushback, it would be foolish to believe President Obama will not continue to use his newfound power even more aggressively.”

Dan goes on to present a hypothetical:

“Power grabs are rarely finite, so just for fun, suppose Attorney General Eric Holder resigns under immense pressure from the “Fast and Furious” debacle. Rather than go through a laborious confirmation process and deal with even more probing questions, President Obama could simply wait for a temporarily empty Senate floor, and install his new attorney general.”

At any time that the Senate is not in their chamber working on legislation, President Obama (and all future Presidents) can now “recess” appoint. This should frighten every American, whether they are fans of the current President or not.

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