WashPost Hails Obama's 'Bold Act' in Making Recess Appointment While Senate's Still In Session

Washington Post scribes David Nakamura and Felicia Sonmez dutifully set out today to paint President Obama as the hero of the masses for his "bold act of political defiance" in naming "Richard Cordray as head a new consumer watchdog agency Wednesday, bypassing Republican opposition in the Senate that derailed his nomination last month."

Nakamura and Sonmez waited until the 10th paragraph in their 33-paragraph page A1 story to get to the Republican side of the argument, that "precedent, over the past two decades, has been that no president can make such an appointment during a recess of less than 10 days."

Nakamura and Sonmez omitted, however, that the actual minimal threshold of inactivity to constitute a Senate "recess" has been considered, since the days of the Clinton Department of Justice, a length of at least three days.

From "frequently asked questions" brief published on December 12, 2011 by Henry Hogue of the nonpartisan Congressional Research Service (emphases mine):

The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ....” Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated:

If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. …

Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

The logic of the argument laid out in this brief appears to underlie congressional practices, intended to block recess appointments, that were first implemented during the 110th Congress.

In other words, President Obama is pushing the limits of his executive recess appointment-making authority even further than the Clinton administration dreamed possible.

Also left out of the consideration of the Post staff writers was the concerns that Republican legislators and conservative critics have about the Consumer Financial Protection Bureau (CFPB) itself, namely that it puts too much authority into one person's hands and that it's not sufficiently accountable to congressional oversight, as Diane Katz of the conservative Heritage Foundation explained in April 2011 (emphasis mine):

Creation of the Consumer Financial Protection Bureau (CFPB) ranks among the most contentious provisions of the vast Dodd–Frank financial regulation statute. Largely unaccountable to Congress and imbued with sweeping powers, the agency is the epitome of regulatory excess.

Legislation introduced last month by Representative Spencer Bachus (R–AL) seeks to tame the CFPB by replacing its directorship with a bipartisan commission. Although well-intended, the proposal falls short of the reforms necessary to rein in the bureau.

[...]

Under current law, the CFPB is to be run by a single director, nominated by the President and confirmed by the Senate, with a term of five years. (The director may be removed by the President for cause.) While more than 100 employees have been hired during the past five months, the White House has not formally named a director. Instead, President Obama appointed Harvard law professor Elizabeth Warren to manage start-up of the bureau as his “special advisor” (read czar) given the long odds of her winning confirmation.

Whether Warren or someone else takes the helm when the agency officially opens on July 21, the director will exert enormous power: consolidated and expanded regulatory authority over credit cards, mortgages, and a host of other consumer financial products previously wielded by seven federal agencies.

In place of a lone director, H.R.1121 would establish a five-member commission, also nominated by the President and confirmed by the Senate, for staggered five-year terms. No more than three commissioners could represent a single political party, and a commission chairman would be appointed by the President. A similar structure exists at the Federal Trade Commission, the Federal Deposit Insurance Corporation, and the Securities and Exchange Commission.

[...]

Because the bureau is ensconced within the Federal Reserve, its budget is not subject to congressional control. Instead, CFPB funding is set by law at a fixed percentage of the Fed’s 2009 operating budget—increasing from 10 percent in 2011 to 12 percent in 2013. (The bureau may also request up to $200 million in additional funds from Congress.) This budgetary independence limits congressional oversight of the agency. The CFPB’s status within the Fed also effectively precludes presidential oversight, while the Federal Reserve is statutorily prohibited from “intervening” in bureau affairs.

Yet Nakamura and Sonmez noted simply that "Republican leaders" have "vowed to dismantle" the CFPB. In the paragraphs immediately following, the Post staffers published incendiary rhetoric from retiring Rep. Barney Frank (D-Mass.), who compared Republican critics of the Obama recess appointment to "arsonists" who would object to people "us[ing] the fire door to escape a burning building."