by Tom Fitton
Apparently, “respecting the U.S. Constitution” didn’t make it onto President Obama’s 2012 New Year’s resolution list, as evidenced by his “recess” appointment of anti-business extremist Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Just an few hours later, Obama made three additional appointments to the National Labor Relations Board (NLRB), which has become little more than a Big Labor battering ram under this president.
Obama is terming his appointments “recess” appointments. They are nothing of the sort, because Congress is not in recess. Article I, Section 5, Clause 4 of the U.S. Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days …” To prevent any recess appointment, the Republican-controlled House has refused to consent to Senate adjournment, resulting in the Senate coming into pro forma session every three days. But as Ed Meese, who served as Attorney General under Ronald Reagan, points out: these pro forma sessions aren’t gimmicks. The two-month extension of the payroll tax holiday was approved during a pro forma Senate session.
But in an unprecedented power grab, Obama has decided that he can decide when Congress is or is not in session. Meese rightly calls it a “constitutional abuse of a high order.” If this abuse stands, the U.S. Senate’s constitutional role to advise and consent in the confirmation of key executive appointees, already undermined by Obama’s many czar appointments, could become moot.
The response to these outrageous and unconstitutional appointments was swift and severe. The editors at Bloomberg immediately splashed an editorial on its website warning that the “president is playing with fire” and choosing “politics over principle” with these appointments. “He risks an election-year legal challenge that could hamstring the consumer bureau and several other financial regulators whose pending confirmations will probably now stall,” they warned.
Any substantial actions by Obama’s pretend appointees at the CFPB or the NLRB would, it can seriously be argued, “null and void.”
Nonetheless, Barack Obama appears undeterred by such considerations.
The Cordray appointment, in particular, earned the ire of Senate Republicans who filibustered this nomination in December 2011. According to The Washington Times:
Defying Congress, President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau in a move Republican lawmakers said amounted to an unconstitutional power grab.
The president acted just a day after the Senate held a session — a move that breaks with at least three different precedents which have held that the Senate must be in recess for at least three days before a president can act…
…The appointment in question is former Ohio Attorney General Richard Cordray, whom Mr. Obama tapped to head the CFPB. The board was set up under the new Wall Street regulation bill Democrats powered through in 2010, just before losing their majority in the House.You may recall that the CFPB was created by the Dodd-Frank monstrosity and got its sea legs under its first head, Elizabeth Warren, another anti-business zealot now running for Senate in Massachusetts (you can read more about Warren’s troubled past here).
If Cordray is the “right man for the job,” as Barack Obama noted in his remarks, then why would the president need to resort to such extreme measures to get “his guy” in position at the CFPB? Because given Cordray’s controversial background and penchant for inflammatory and irresponsible rhetoric, there is no chance he could survive the confirmation process — especially when you consider that Congress does not control the agency’s purse strings. The CFPB gets its funding from the Federal Reserve.
Here’s what I mean by “inflammatory and irresponsible.”
In a scathing editorial when Cordray was first nominated, The Wall Street Journal said that throughout his career, Cordray has demonstrated a “hostility toward business.” The Journal explains:
[Cordray] sued Ally Financial’s GMAC Mortgage over its foreclosure practices—a lawsuit that helped spawn the national robo-signing uproar, which has mushroomed into an effort to force big banks to cough up billions for Democrats to redistribute. He sued rating agencies for grading mortgage-backed securities as safe investments. He sued Bank of America for purportedly hiding losses and bonuses prior to the Merrill Lynch merger. The list of cases is long.In an interview with the Journal, Cordray also compared employees of a financial services company to the “Nazis at Nuremberg” who said they were just following orders.
And, as John Berlau points out in The American Spectator, “Cordray has long supported ESOP, formerly known as the East Side Organizing Project, an Ohio housing advocacy group that has distinguished itself by storming into banks and launching plastic ‘shark attacks’ on the lawns of private homes.” These are tactics that would make any Wall Street Occupier proud.
But while Cordray was all too happy to spew venom at U.S. corporations, the then-Ohio attorney general showed little regard for one of his own constituents, including Ohio citizen and small businessman Joe Wurzelbacher, also known as “Joe the Plumber.” Cordray looked the other way while Ohio government officials (and Obama hacks) combed through Mr. Wurzelbacher’s private government files and attempted to dig up dirt and smear his name – all because Mr. Wurzelbacher had the gall to question then-candidate Barack Obama about his tax policies.
Commenting on his decision to bypass Senate confirmation, the president explained, “I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.” The president said it was his “obligation” to ignore the Senate and simply install Cordray.
And following through on his “obligation,” Obama moved quickly to install three more of his cronies over at the NLRB. Obama first announced these three NRLB nominees on December 15. They haven’t been filibustered, they haven’t had their background checks, and no hearings have been scheduled yet by the Democratic-controlled Senate. So Obama thinks it appropriate to install appointees in violation of the law of the land simply because he anticipates opposition? I understand this president fantasizes about being king, but this act shows that he is acting out his fantasy.
According to The Washington Post blogger Greg Sargent, “The move, which is arguably as important as the Cordray appointment, will ratchet up opposition from Republicans and make this an even bigger fight, since they have been attacking the NLRB…” Sargent accurately points out that the president’s appointments will “help energize unions in advance of the 2012 election…”
So, who is it exactly that is putting politics ahead of what’s best for the country?
Barack Obama cannot toss enough bones to his friends in Big Labor. From Obamacare waivers to recess appointments to the NLRB’s controversial Boeing lawsuit, the president seems intent on paying Big Labor in advance for union votes coming his way in November.
What is there to be done about Obama’s power grab? Short of impeachment (which, however extraordinary, for the first time in this presidency ought to be given serious discussion), Congress can make its displeasure known through the appropriations process and by holding up more nominees (which may not be any good given the president’s usurpations this week).
For Judicial Watch’s part, our lawyers and investigators will endeavor to consider a variety of approaches to challenge and investigate this lawlessness.
The Iowa caucuses results this week were newsworthy, but the transformation of our constitutional order by Barack Obama is the big news.
Judicial Watch has the most comprehensive investigation of Obama’s czars currently available. Click here to read our recent report.