ABC News has confirmed that President Obama will attempt to grant a recess appointment to Richard Cordray, his choice to run the new consumer Financial Protection Bureau, using powers ordinarily only available when the Senate is in recess, which it is not.
Forty-four senators object to the appointment, not over Cordray's credentials, but over what they consider exceptional powers given to the new agency.
Cordray will travel to his home state of Ohio today with President Obama, who will make yet another high school gymnasium speech about the economy and the "We Cant Wait" campaign he is waging against Congress.
According to senior administration officials, the White House Counsel's office has decided that "by any straight reading" of the law, the Senate has in fact been in recess since December 23, and will not return to session until January 23. They say that remaining in "pro-forma session" with no business conducted in the interim is not sufficient to prevent a president from using his constitutional authority to place a recess appointment into office until the end of the current congressional term.
"In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called 'pro forma' sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds," White House Communications Director Dan Pfeiffer writes in a White House blog. "But gimmicks do not override the President's constitutional authority to make appointments to keep the government running. Legal experts agree."
Senate Minority Leader Mitch McConnell said the appointment is "an unprecedented move" and he complained that the president "has arrogantly circumvented the American people."
"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." McConnell, R-Ky., said. "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."
The new consumer watchdog agency can't employ some of its new regulatory powers until there is a chairman in place. President Obama is testing the legality of all this, and senators fume his maneuver is "arrogant."
Republicans also contend that the move "set the precedent that any time the House and Senate are not in session, the president could install his nominees - for up to two years." Tuesday a GOP leadership aide noted that the appointment was "unprecedented without qualification."
"Such a move would overturn more than 200 years of precedent and a core element of our constitutional system of checks and balances," the aide said. "No president has ever done what would be required to make a recess appointment [Wednesday]."
Tuesday the House held a pro-forma session to begin the second session of the 112 th Congress. According to the Constitution, the House and Senate cannot adjourn for longer than three days without the consent of the other chamber by agreeing to a concurrent adjournment resolution. In an effort to block recess appointments, both chambers have held pro-forma sessions every three days and the president has not made any recess appointments since the GOP took the House majority.
Republicans are also quick to point out that the effort to block recess appointments is not a partisan one. During the end of the George W. Bush administration, the Democratic-controlled Senate regularly held pro-forma sessions every three days during holidays to prevent the president from making recess appointments. Then Senate Majority Leader Harry Reid noted in remarks on the floor in 2008 that he had to keep the Senate in pro-forma session to block an appointment that President Bush wanted.
"Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people by 'recess' appointing Richard Cordray as director of the new CFPB," House Speaker John Boehner said in a statement. "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."
Boehner contends that the agency "is poised to be one of the least accountable and most powerful agencies in Washington."
"Created by the deeply flawed Dodd-Frank law, it is subject to none of the checks that independent agencies normally operate under, and will have an unprecedented reach and control over individual consumer decisions," he added. "Earlier this year, 44 of my Senate Republican colleagues and I served notice that we will not confirm any nominee as director, regardless of party, until structural changes are made to make the bureau accountable to the American people-and more transparent. Our request was met with silence from the administration. As a result just last month the Senate rejected Cordray's nomination. Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But once again, the President has chosen to circumvent the confirmation process."
With reporting by ABC News' Sunlen Miller, John Parkinson and Mary Bruce.