Senate Minority Leader Mitch McConnell has a habit of rushing to court to reverse his political defeats. The ink wasn’t dry on the McCain-Feingold Bipartisan Campaign Reform Act when McConnell filed a lawsuit challenging its constitutionality in court in 2002. McConnell and Senate Republicans supported similar suits challenging the Affordable Care Act moments after President Obama signed it. And now McConnell is at it again. Along with 41 Republican Senators, McConnell has filed a lawsuit, which the U.S.
Constitutional limits on power aren't trivial. They are important. And while I think President Obama was within his rights to use his recess appointment powers this week, I'd highly recommend the essay by Akhil Amar and my colleague Timothy Noah, laying out a truly elegant way that Obama and his allies could put the constitutional questions to rest. But in this case the constitutional questions are also a distraction from the substantive question, which is whether the federal government will be able to protect average Americans from predatory lenders.
On Jan. 4 President Obama made several recess appointments, in effect making an independent judgment that the Senate is in recess. Senate Republicans howled in indignation that the Senate is not in recess; they’d pressured the Democratic majority to keep the Senate technically in session in order to prevent the president from appointing Richard Cordray (or anyone) director of the Consumer Financial Protection Bureau.
Should President Obama use the recess appointment power when Republicans in Congress refuse even to consider his nominees? You better believe it. Not only are Republicans blocking Obama’s nominations at a record rate. They are doing so in order to impose their own ideological agenda and, in some cases, to undermine duly passed laws they don't like but can't repeal. That’s a modern-day form of nullification, as the political scientist Thoman Mann has put it and the Atlantic's James Fallows has been trying, desperately, to remind people.
I spent the morning at Brookings watching Richard Cordray, the new director of the Consumer Financial Protection Bureau, give a speech. (You can watch the entire Brookings event here.) The question on everyone's mind, of course, was whether his recess appointment, made while the Senate is not in recess, is constitutional. (I have my doubts.) Cordray had very little to say about his legal status. "It's a valid appointment," he said, "but I will leave those details to others." He emphasized that because the constituency he serves, i.e.
[Correction, Jan. 6: An important premise of this blog post as originally written was incorrect. In the original version I stated that on the day before President Obama made his recess appointments there was a brief window when the Senate was technically in recess. I expressed bafflement that the president didn't take advantage of that window and instead chose to make his recess appointments later, when the Senate was technically in session. But there was no window; the changeover from one Senate session to the next was rigged in such a way that the Senate was continuously in session.
News broke today that President Obama has decided to defy Senate Republicans by appointing Richard Cordray to head the Consumer Financial Protection Bureau. Some thought this recess appointment would come yesterday, but as Brad Plumer notes in The Washington Post, “recess-appointing Cordray now rather than yesterday means his appointment will last through the end of 2013, rather than through the end of 2012.” What factors determine how long a recess appointee can serve? A 2011 report from the Congressional Research Service gives some insight.
In his speech last Tuesday in Osawatomie, Kansas, President Obama initiated a new campaign to pressure Senate Republicans to drop their filibuster against Consumer Financial Protection Bureau nominee Richard Cordray and actually vote on his confirmation.
The Senate on Thursday took up the nomination of Richard Cordray, President Obama’s choice to lead the new consumer protection board. It did not vote to confirm him. The outcome isn’t at all surprising. But it’s important to take a step back and understand just what is happening here, because Republicans aren't simply weakening consumer protection. They're also weakening American democracy. Remember, the Senate didn’t actually vote on Cordray’s nomination. The vote never took place because the Republican caucus, with one exception, are supporting a filibuster the nomination.
Polling can be less revealing than it seems. Sometimes voters are uninformed. Sometimes they hold views in obvious contradiction to one another. And sometimes they give answers that reflect the wording of questions more than their own substantive views. But it's getting hard to ignore the polls suggesting that Americans are in a populist mood -- and by populist, I mean the liberal as opposed to the conservative kind. The latest evidence comes from the new United Technologies/National Journal survey.