Is Obama's Cordray Appointment Unprecedented? Not by a Longshot.

PHOTO: President Barack Obama shakes hands with Richard Cordray before speaking about the economy on Jan. 4, 2012 at Shaker Heights High School in Shaker Heights, Ohio.
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President Obama "manned up" Wednesday, exercised his executive authority and announced the recess appointment of Richard Cordray as the Director of the Consumer Financial Protection Bureau—ending months of partisan bickering and obstructionism by 45 Republican Senators and their patrons in the financial services industry. I read the comments of GOP leaders in the House and Senate (which we all expected) and could only shake my head. I felt like I was reading the script of "The Daily Show."

"This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department," House Speaker John Boehner (R-Ohio) said in a statement. "This action goes beyond the President's authority, and I expect the courts will find the appointment to be illegitimate."

Please, Mr. Speaker. Can you really say that with a straight face?

[Related articles: Read more on the Consumer Financial Protection Bureau]

Senate Minority Leader Mitch McConnell (R-Ky.) ratcheted up the rhetoric even more saying Obama has "arrogantly circumvented the American people" by installing Cordray when the Senate isn't in recess. According to the Senate's Dr. No, "This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer…Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress's role in providing a check on the excesses of the executive branch." Actually, fellas, you're mistaken.

Permit me to explain (listen closely, my Republican friends).

When legislation is passed by both the U.S. Senate and the House of Representatives and signed into law by the President, Senators have blocked recess appointments of unobjectionable nominees in the past, preventing their appointment, though the technicality of a "pro-forma session" (aka the "non-recess recess"). For us mortals unschooled in the byzantine rules of the Senate, a "pro forma session" occurs when a couple of Senators "gavel in" and "gavel out" but conduct no business.

As Credit.com's Christopher Maag reported two days ago, some have argued that the pro forma sessions should not prevent the President from making recess appointments. In a 2010 editorial in the Washington Post, former Justice Department attorneys Steven G. Bradbury and John P. Elwood wrote:

"The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in 'recess' for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions. The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit."

Ultimately, the President's bold move will produce a hailstorm of political and legal debate, most of it abstruse. The explicit power granted to the president by Article 2 of the Constitution has generally been interpreted broadly by the courts, in those rare instances where it is has been interpreted at all.

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