Earlier this month, President Obama unconstitutionally overstepped his executive authority with the appointment of Richard Cordray as the director of the Consumer Financial Protection Bureau (CFPB) and three new members to the National Labor Relations Board (NLRB).

The appointments undermine the confirmation process and Congress’ critical responsibility to check the power of the executive branch.  Reversing years of precedent, the President decided to push his own agenda despite the Senate’s rejection of Cordray’s nomination only a few weeks earlier.  The power grab could set an unconstitutional model for future administrations.

A Blatant Abuse of Power

The Constitution grants a president the right to make recess appointments.  This much is unquestioned and clearly set forth in Article II, Section 2 of the Constitution, which states the President can “fill up all Vacancies that may happen during the Recess of the Senate.” 
But the power to execute this right nevertheless hinges on an essential condition: The Senate must be in recess.  In this case, the Senate was in session.

It stands to reason that if President Obama’s judgment – not Congress’ – dictates when the Senate is in “recess,” then what would stop him from making an appointment whenever he chooses?  Michael McConnell, a former federal judge and director of the Constitutional Law Center at Stanford Law School, recently suggested in the Wall Street Journal that the President “could, for example, make an appointment overnight, or during a lunch break.”

Previous Objections Forgotten

In 2007, Majority Leader Harry Reid kept the Senate in pro forma session to block nominations by President George W. Bush.  He said recess appointments are “an end run around the Senate and the Constitution.”  The Democratic leadership was correct on the law then, and they ought to be outraged now over President Obama’s disregard of the Constitution. 

Instead, the Democratic Leader recently defended the President’s appointments as a “good move.”  

Working With Congress

The President has made it obvious in recent months that he wants to rail against a “do-nothing Congress.”  And yet, instead of working with Congress to make needed reforms, he fuels an already polarized environment with this move. 

The Constitution does not change based on which party occupies the White House.  The same rules should apply no matter who holds office.  Preserving the sanctity of the decisions of the Senate and the role it serves is one way we support and defend our founding document and the ideals of those who created it. 

This country was not built upon – nor did it rise to greatness because of – a single branch of government.  Our democracy sits on three separate pillars, and the decisions of the legislative branch are not merely a hurdle for the President to run around.

Steps Forward

Senate Banking Committee Chairman Tim Johnson (D-S.D.) has scheduled a hearing this week – supposedly to hear testimony from Richard Cordray on his plans for the Consumer Financial Protection Bureau. 

Because the President did not comply with the Constitution, Cordray is not the duly constituted director of the CFPB.  His purported recess appointment is in fact a nullity.  I will not provide the Administration with an appearance of legitimacy in this action, and I will not attend this hearing. 

This may seem to be a small step, but it is the first of what I hope becomes a debate in the Senate – from both parties – about the constitutional system of checks and balances.  This matter also will go to the courts, and I pray that the sanctity of our Constitution will be upheld. 

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