Obstructionism leaves Obama little choice on appointments
Failure to govern prompts face-off
To hear Senate Republicans howl, you’d think that President Obama had declared himself king last week. Not quite. All he did was temporarily name someone to head a new consumer protection agency that Congress created in 2010.
Many Republicans are openly hostile to the Consumer Financial Protection Bureau, which is supposed to prevent deceptions by banks, mortgage firms and payday lenders. They see it as a source of heavy-handed regulation.
Since failing to prevent its creation, they’ve tried to hobble the agency by denying it a director, blocking two highly qualified candidates in hopes of forcing Obama to agree to changes that would weaken the bureau.
Initially, Obama tried to appease Republicans, bypassing the most obvious choice to head the bureau — Harvard law professor Elizabeth Warren, who had largely designed the agency — because she was a lighting rod for critics. But last month, Senate Republicans blocked the second choice, former Ohio attorney general Richard Cordray.
So on Wednesday, Obama named Cordray in a “recess appointment,” along with three controversial nominees to the National Labor Relations Board. The move was both a political tactic by the president, who can use it to tar Republicans as defenders of Wall Street at the expense of consumers, and a predictable consequence of Congress’ failure to govern.
Under the Constitution, presidents can appoint heads of agencies when the Senate is in recess. Presidents since George Washington have taken advantage of this privilege, often using it to install controversial nominees. In 1903, Teddy Roosevelt brazenly used the few seconds between the end of one yearly congressional session and the beginning of the next to make 160 appointments.
This is certainly not the preferred way to get nominees in place and might be vulnerable to a constitutional challenge. But it at least is a gridlock breaker in polarized Washington. Ideally, presidents should have wide latitude to appoint heads of executive agencies, and the Senate’s confirmation power should be used to prevent unqualified or unethical nominees from serving, a description that fits nei- ther Cordray nor Warren.
Instead, nominations have become just another political game, with advice and consent used by senators — of both parties — to stymie nominees and even entire agencies they don’t like. And like other political games, this one has gotten out of hand in today’s poisonous partisan climate, leaving dozens of important government jobs and judgeships vacant.
In late 2007, Senate Democrats began using brief, “pro forma sessions” to stop President George W. Bush from making recess appointments. Republicans copied the ploy during the recent ChristmasNew Year’s recess, trotting out a senator to gavel an empty chamber into session for a few seconds every three days.
The validity of the appointments turns on whether that practice constitutes a real session. Some scholars argue that any actions that appointees such as Cordray take will be open to challenge because they weren’t legally appointed, and courts might well have to sort out the constitutional questions.
But from a common-sense standpoint, you’d think there is already enough hypocrisy in Washington without pretending that an empty Senate chamber where no business is conducted is really “in session.”
Congress created the consumer protection bureau in 2010. The agency opened its doors in July. Obviously, it should have a leader. Sometimes, the government simply has to get going and do its job, no matter how badly obstructionists prefer gridlock.