Why Obama Chose To Appoint Cordray The Hard Way

[Inuca]

http://tpmdc.talkingpointsmemo.com/2012/01/the-hidden-benefit-of-obamas-hardball-consumer-watchdog-gambit.php

Republicans are predictably attacking President Obama’s decision to recess appoint Richard Cordray — his top consumer watchdog — on procedural grounds and with constitutional volleys. This is why Obama and Cordray’s allies thought it might be wiser for Obama to make the appointment on Tuesday when, for technical reasons, he could have relied on precedent and avoided opening this particular Pandora’s box.

But by taking a more daring approach, Obama managed to both wrongfoot the GOP politically, and secure for Cordray up to an extra year in the director’s chair at the Consumer Financial Protection Bureau.

I don'twant to paste more, the idea is that technically today the appointment was made during the NEW session, while yesterday it would have been during the old one, and because of that Cordray can have TWO years instead of one (of course assumig that Obama gets reelected)

[Kalidurga]

1. That was brilliant...

I hope the GOP are gnashing their teeth today.

[99Forever]

7. They are...

.. and it's pure joy to watch.

[gateley]

2. He wouldn't have been able to do it any other way. The Republicans don't want to have anything to

with a Consumer Protection Agency.

[Inuca]

6. The difference was

today vs. yesterday.

[Whisp]

3. I hope Boner is turning purple about now.

[11 Bravo]

32. That Boner is always orange (something to do with eating Cheetos while enjoying his internet porn).

[Ian David]

4. Plus, it gives us a chance to say, "We TOLD you so!" to all the Obama-naysayers who complained...

... on DU all day yesterday.

I'm sure Obama had Democratic Underground on his mind when he did this.

Which is why he didn't go to The Olive Garden yesterday.

[WilliamPitt]

11. And that's the most important part.

Speaking as one who has often criticized this president, I am very glad this happened...but I am a little confused by all the pro-Obama strutting I'm seeing on DU.

1. It's just a recess appointment, and it doesn't make up for the other disappointments that have come down the pike.

2. If your favorite part of this appointment is being able to say "Neener neener neener" to people on DU, maybe it's time to step away from the keyboard for a bit.

(/2 cents)

[mmonk]

16. Seems to be for some

instead of enjoying a victory for all of us which we can all agree on.

[snooper2]

22. I know, all the pro Obama strutting could have been done with one picture

[frazzled]

26. No, the point is it's a two-year appointment now, not one year

I think everyone criticizing him yesterday for not using the traditional tiny window for recess appointments failed to take into account that this bolder, unprecedented move today was the more gutsy move: it will help to solidly establish the agency—let it get a firm foothold—so that Republicans can't dismantle it by the end of this year. As TPM points out, this has its risks (future presidents might try this with shitty nominees). But I think the issue is that Obama feels that the establishment of this Consumer Financial Agency is of such importance that he had to take a great risk to make sure it survives.

It's not just a question of "I am very glad it happened." What would have happened yesterday and what happened today are not the same. Obama surprised everyone by taking a move far bolder than anyone anticipated.

[WilliamPitt]

30. "Obama surprised everyone..."

...which is the whole problem in a nutshell.

[frazzled]

36. Why is it a problem?

Had he tipped his hand before, the Republicans not only would have made it into a lynching, but probably would have found a way to prevent it. The surprise element was essential.

[FrenchieCat]

29. What is important is a Consumer Protection Agency that will have a director for at least 2 years....

considering the amount of naysaying at this site, it would appear that when he does something right, he should get as much credit by those who support him, as he gets criticized by those who would prefer to only discuss at length what he does that they believe is wrong at all times.

No, good acts don't take back the acts that some would suggest are not so good, but at the end of the day, 100% (or anything even close) right isn't gonna be coming from any one President, ever...including this one, and the fact that you would feel compeled to mention this fact is interesting.

One of the reasons I rarely post at this site anymore (or read it), is that I have come to believe that what progressives say about this President DOES make a difference in the larger election scheme of things, and that his many constant critics will get theirs, just like I will get mine, if this President is not re-elected.....and so the constant whining about everything (before, during and after-the-fact) and the consistent ignoring of the positives accomplishments he has had, filtered through the media, will not help him win votes....so IMO, constant naysaying = lowering the level of enthusiasm required to win = helping the opposition no matter the actual intent.

[Robb]

33. LOL Fair enough. Although I have two favorite parts about this.

First, I get to throw around "Jeopardy champion" and it makes me happy. Smart people doing good things.



Second, it wasn't just him. I think these are even MORE important: http://www.chicagotribune.com/business/breaking/chi-obama-skirts-congress-again-to-fill-nlrb-posts-20120104,0,7957979.story

[WilliamPitt]

41. + 1,000,000

[Pab Sungenis]

15. I admit, I like the new spine Obama has grown.

Let's see him keep it up, please.

[young but wise]

5. K&R.

[sharp_stick]

8. Anything that makes McConnell

wet himself in rage like this just makes my day. When that chinless tool is angry and the jowls start to shake it is funny as hell.

[onenote]

9. Arguably, the approach he took is less daring than relying on the "constructive" recess approach

The President's position, supported by an op-ed written in 2010 by two bush administration lawyers no less, is that there is no merit to the pro forma session strategy and this is just another run of the mill recess appointment made during an extended recess. Trying to shoehorn the appointment into the one or two seconds between the gavelling closed of the first session and the commencement of the second session -- a tactic only used once, more than 100 years ago -- would have seemed gimmicky. This way, the WH can accuse the repubs of using gimmicks and, as you point out, get the benefit of a longer recess appointment.

[vi5]

10. I was wrong. He did it.

Credit where it is due. I thought I posted on here yesterday that I thought he wouldn't do it, but I couldn't find it in my posting history.

But in any event...I thought it. I was confident enough about it that I THOUGHT about posting it. So even though I didn't post it I'll still admit that I was wrong.

[lacrew]

12. I have a question

He appointed, after the beginning of the 2nd session of the 112th congress....i.e, when the Senate was in session.

What stops any future president from appointing anybody, at any time?

The entire Senate approval process is effectively gone. Presidents in the future can make all their appointments the day after congressional sessions begin...and have somebody in place for two entire years, without any Senate approval, or vetting.

Heck, after the 2 year appointment expires, why not just do it again?

Why would a president two years into his second term even consider going through Senate confirmation with an appointee?

This sets the precedent....forever....think about that.

I don't think this is a really good thing.

[Motown_Johnny]

14. it was a recess appointment

even though the recess lasted just a few seconds.

Here is a thread from yesterday about it: http://www.democraticunderground.com/1002109151

[lacrew]

20. Not a Typical Recess Appointment

Reading the original article, he deliberately did not use the manuever described in your link. Instead, he waited until after the session started. The alleged 'genious' of this manuever is that the appointment expires at the end of the next session. The manuever described in your link would result in a term expiring in late Dec 2012 or early Jan 2013. Waiting until the current session has started delays the expiration for another year, to as late as Dec 2013.

The problem is - the Senate confirmation process no longer exists.

[Motown_Johnny]

39. true, but blocking all nominees and keeping congress in session

by meeting and then adjourning for just seconds every few days is not typical either

[onenote]

17. I'll let a couple of bush administration lawyers explain it:

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441.html

The bottom line is that this doesn't set a precedent for allowing a president to appoint "anybody, at any time." It does set a precedent that when the Senate goes into an extended recess interrupted by pro forma sessions during which no business is or can be conducted, it is in fact a recess for purposes of the recess appointment clause of the Constitution. Now, that interpretation might be challenged, but I doubt such a challenge would succeed (the courts generally hate getting caught up in this kind of food fight). And yes, it means that the Democrats won't be able to employ this tactic themselves going forward (as we were able to during the last two years of bush II's presidency). But its worth giving up the tactic in these circumstances, imo.

[lacrew]

23. Interesting reading

But not what happened here.

The president does not have a hostile force, controlling when the senate goes in and out of session. Sure, he can't get a confirmation vote to happen...but Reid controls when it goes into session. The president could have easily made a typical recess appointment.

However, he deliberately delayed, to make it while session 2 of the 112th congress was already in progress - to extend this recess appointment a full year beyond other appointments.

Now, every president will do this in the future....every president...whenever they want.....forever....nice.

[onenote]

31. "The president could have easily made a typical recess appointment."

I'm not sure what you are referring to when you say "typical recess appointment."

If you are referring to the situations in which, historically, recess appointments have most commonly been made -- intersession or intrasession adjournments of more than three days -- the problem is that if you accept the validity of the pro forma session strategy, there hasn't been a recess of sufficient duration since the repubs took control of the House in 2010.

Now, you might ask, what does the House have to do with it? As you note, the Senate remains in Democratic control. However, the Senate can't call an intrasession recess for more than three days without the consent of the House. And since the House has been convening in pro forma sessions, the Senate is blocked by a "hostile force". So, again, the President couldn't have made a "typical recess appointment" unless he called the bluff on the pro forma session tactic.

Finally, if you are suggesting that making recess appointments during an intersession adjournment that lasts one or two seconds would be "typical" you are mistaken as a matter of history. That has only been done once, more than 100 years ago. Doing so would be as gimmicky if not more so than the gimmick of recessing but pretending not to in order to prevent the exercise of the recess appointment power.

In the end, the President made a wise choice, one that sets a precedent not for making recess appointments whenever a president wants, but for making recess appointments when the Senate is in de facto recess for an extended period of time even if pro forma, non working sessions break up the length of the recess.

[lacrew]

35. From the article at the original link:

"Yesterday, it turns out, the Senate made the switch from the first to the second session of the 112th Congress. Some advocates hoped Obama would use the brief seconds between those two sessions to make the appointment. Because previous Presidents had seized that opening to make numerous recess appointments, Obama could have avoided a procedural or legal fight with the GOP. The rub, though, is that Cordray’s appointment would have expired at the end of the year. The “next full session,” after all, would have began mere seconds after his appointment was official.

By acting today, with session two of this Congress technically under way, Obama has given Cordray the rest of this session and the full next session of the Senate to run the bureau. Cordray could potentially serve through the end of 2013"

It seems very clear to me. The only thing I will agree with you on is my mis-use of the word typical....the original intent of recess appointments has been perverted by both parties (it was originally mean to fill vacancies if somebody died or was otherwise unable to perform duties, while congress was out of session - and it hasn't been used this way in a long time). This split second recess appointment is really no more gimmicky than previous recess appointments in past decades...just a response to a legislative branch trying to regain some of its powers.

However, this 'in session' appointment unravels any semblance of rules...and, as some have boasted on this thread, it dares the GOP to try to stop it, at their own political peril. So, they won't stop it....and it will never be stopped again in the future.

So, here we have a long history of presidents abusing their appointment powers, at the expense of the Senate (which itself has mutated the definition of a fillibuster, and over-reached its own powers)...and the solution is a power play which will be enjoyed by all future members of the 'presidents' club, from both parties, with no advice and consent from another branch of government. The ascendancy of the executive branch marches on...and people are cheering? Its really not a good thing.

I advocate for a restoration of filibuster rules, which does not allow 'two track' business, as well as the original intent of recess appointments....more 'originalist' and less reliance on lawyers to find loopholes.

[onenote]

40. To the extent that the article suggests that the fleeting intersession recess

has been used more than once in American history as the basis for making recess appointments (i.e. by "previous presidents" in the plural), its simply wrong. That has been done only once, by Teddy Roosevelt, in 1903. Period. While there have been other instances in which Congress adjourned one session sine die and immediately commenced the new session thereafter, most recently in 1992 and 1995, no attempt was made in those cases to make any recess appointments. Indeed, there is only one other time in which a recess appointment was made during a recess of three days or less: Truman made a single recess appointment on the first day of a three day intersession recess.

Attempting to make a recess appointment during the couple of seconds during which Congress was between sessions yesterday would not have avoided a procedural or legal fight with the GOP. Indeed, they could and might well have argued that not only was the length of the recess too short, but that the appointments missed the window -- that they weren't made during the couple of seconds when Congress was out of one session but not in the next.

Finally, disputes over the meaning and application of the recess appointment are nearly as old as the nation. While there is evidence that the framers primarily had in mind administrative continuity when they included the recess appointment provision in the Constitution, these disputes suggest that Presidents also have used it for political and strategic reasons going back many many years.

[sharp_stick]

18. It does set a precedent

and it may not be a good thing but the Senate was in recess according to a lot of legal opinions.

Over the last while the entire Legislative process has been pretty much hamstrung by massive partisan posturing and idiotic tactics like "secret holds" and phony filibusters. I'm to the point that I don't think Congress functions at all anymore, nothing gets done until we're at a point where their inaction directly causes a downgrade in the debt rating.

If there is one good thing that could come of this it could be that somehow we may be able to convince the assholes in both houses of Congress that it's time to reform their archaic rules and do something to modernize.

[Inuca]

24. It does indeed set a precedent n/t

[lacrew]

27. It is not the archaic rules that are the problem

The problem is that they have already been 'modernized'.

In the 70's, the Senate adopted a 'two track' system. Under this new rule set, a filibuster only stops progress on the one bill...not the entire Senate. This makes it easy to filibuster almost anything, with little to no consequence on the other business of the Senate.

Going back to the 'archaic' rules would the filibuster a rarity.

[sharp_stick]

28. I agree

I didn't use the term archaic properly. I think I meant it more as an invective than anything else.

[Schema Thing]

21. There is an easy way for Congress to prevent a President from doing this:

Formally reject the nominee.

[Inuca]

25. 100% correct

in which case the recess appointment would no longer be possible.

[drm604]

37. Here's what I think this does.

It stops the congress from intentionally stonewalling appointments. From now on they'll have a real incentive to find someone acceptable to both them and the President in order to prevent him from nominating anyone he wants during recess.

Sure, a President could hold off on nominating anyone until recess but there'll be a lot of political pressure not to do so, especially when he knows that Congress will be more inclined to be cooperative.

[Motown_Johnny]

13. Pres. Obama wants this fight. He is shaping the argument with this move

and forcing the Republicans to attack him on something that will be popular with most people.

It was a good move both on policy and on politics.

[JoePhilly]

38. agree.

[FarLeftFist]

19. Here:

[Tx4obama]

34. Right before The Senate went home for Christmas

the Senate sent the Cordray nomination back to the White House.
The Senate should have allowed an up and down vote on the Cordray nomination and avoided this mess.

On Dec 17th Senator McConnell objected to confirming TONS of nominations on the Executive Calendar.
Here's a LIST of them all: http://democrats.senate.gov/2011/12/17/senator-mcconnell-objects-to-confirming-nominations-on-the-executive-calendar/


And here's a list of the nominations that were completely drop from the Executive Calendar and sent back to the White House:

All nominations received by the Senate during the 112th Congress, first session, will remain in status quo, notwithstanding the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following exceptions:

Cal. #43 Caitlin Joan Halligan, to be US Circuit Judge for the District of Columbia

Cal. # 67 Philip E. Coyle, III, to be an Associate Director Office of Science and Technology Policy

Cal. #112 William J. Boarman – to be Public Printer

Cal. #185 Michael Green US District Judge for the Western District of New York

Cal. #413 Richard Cordray – to be Director, Bureau of Consumer Financial Protection

PN2 Victoria Frances Nourse, of Wisconsin, to be United States Circuit Judge for the Seventh Circuit

PN14 Louis B. Butler, Jr., of Wisconsin, to be United States District Judge for the Western District of Wisconsin

PN95 V. Natasha Perdew Silas, of Georgia, to be United States District Judge for the Northern District of Georgia

PN96-112 Linda T. Walker, of Georgia, to be United States District Judge for the Northern District of Georgia

PN158 Arvo Mikkanen, of Oklahoma, to be United States District Judge for the Northern District of Oklahoma

PN317 Steve Six, of Kansas, to be United States Circuit Judge for the Tenth Circuit

PN653 Rebecca R. Wodder, of Virginia, to be Assistant Secretary for Fish and Wildlife

http://democrats.senate.gov/2011/12/17/senate-floor-wrap-up-for-saturday-december-17-2011/

[WillyT]

42. GOOD !!! - K & R !!!

[joshcryer]

43. Wow! That is a brilliant move! Two years instead of one!