President Barack Obama this week put Richard Cordray on the new Consumer Financial Protection Bureau and Sharon Block, Terence Flynn, and Richard Griffin on the National Labor Relations Board, all as recess appointments. Scholars at The Heartland Institute, a free-market think tank, say this move raises serious questions about the separation of powers in the U.S. Constitution because the Senate is officially in a “pro-forma” session and not in recess.
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“We have just seen that the Supreme Court had held that the National Labor Relations Board cannot operate with only two members, which is one sign that the question of legitimate appointments is an issue that will not go away in this age of increased polarization. This issue will likely reach the Court if there is no political solution, and it will surely highlight the genuine divisions over the structure of Dodd-Frank, where the Republicans have a point that the act vests too much power in one person for too long a time, given the five-year term of office.
“At a more general level, I have never understood the logic of the recess appointment. What is it that says that a person who we know cannot get confirmed in the ordinary fashion by Senate vote can be put into office for the duration of the Congressional session? It gives perverse incentives for the Senate to stay in session forever to block the appointment, and it removes one of the major checks in our elaborate system of checks and balances when the president pounces on a recess to fill the position with the rejected candidate.”
(Epstein offers additional comments at Ricochet.com.)
“It’s positively frightening that President Obama taught constitutional law to vulnerable students at the University of Chicago Law School for 12 years, because he is entirely ignorant of the U.S. Constitution’s most important provision: separation of powers.
“Professor Richard Epstein has previously faulted Obama, addressing their time together as teaching colleagues at the University of Chicago law school, for failing to engage in dialogue and debate with other instructors. Epstein’s observation on this point was brilliant – indeed, prescient – because such dialogue and debate uniquely forces legal thinkers to understand the ways in which they are misguided. Or, in Obama’s case, just plain wrong.
“Obama totally fails to comprehend the most important provision of the U.S. Constitution: that the U.S. government consists of three equal branches – the legislative, the executive, and the judicial. Each is separate. Each is entitled to conduct its own affairs as it sees fit. Each is barred from poaching upon the duties of another branch.
“The Richard Cordray so-called ‘recess’ appointment does exactly that, and thus is unconstitutional, as is Obama’s recent vow to legislate if – in his view – Congress should have legislated but didn’t. Obama ought to be forced to confine his presidential activities to his constitutional role of executing the laws passed by Congress. He ought to be forced to stop enacting laws himself.
“There ought to be a lawsuit by Congress against Obama. I hope there is one.”
“Recess appointments, designed to enable the Executive Branch to continue to function when Congress is not in session, have become a way for presidents to game the system by not sending a nomination to the Senate until the Congress goes on vacation. To use this trick in the profligate way the Obama administration has done indicates a severe lack of respect for the rule of law.”
"President Obama's abuse of the appointment process is particulaly disturbing in the context of an appointment of Richard Cordray to head the new Consumer Finance Protection Bureau. The CFPB is a creation with extraordinary powers and little accountability. To place it in the hands of someone who has not obtained Congressional approval is disappointing."
The Heartland Institute is a 28-year-old national nonprofit organization with offices in Chicago, Illinois; Washington, DC; Austin, Texas; Tallahassee, Florida; and Columbus, Ohio. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our Web site or call 312/377-4000.