President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau and three new members to the National Labor Relations Board — moves Republican lawmakers said amounted to an unconstitutional power grab.
The president acted just a day after the Senate held a session — breaking with at least three different precedents that said the Senate must be in recess for at least three days for the president to exercise his appointment power.
Mr. Obama himself was part of two of those precedents, both during his time in the Senate and again in 2010 when one of his administration’s top constitutional lawyers made the argument for the three-day waiting period to the Supreme Court.
Mr. Obama tapped former Ohio Attorney General Richard Cordray to head the CFPB, and named three others to the labor board — all of which had been stymied by congressional Republicans who said Mr. Obama is accruing too much power to himself through those two agencies.
In strikingly sharp language, Republicans said the Senate considers itself still in session for the express purpose of blocking recess appointments, and the move threatened to become a declaration of war against Congress.
“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.
GOP House Speaker John A. Boehner called the move “an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department.”
“The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution,” the Ohio Republican said in a statement.
The White House, though, argues Republican senators have been stonewalling his nominees for so long that Mr. Obama had no choice but to circumvent them.
The president introduced Mr. Cordray during a trip to Ohio Wednesday, telling a supportive crowd that the Senate Republicans’ ongoing blockade of his nomination “inexcusable.”
“I refuse to take ‘No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” Mr. Obama said.
CPFB supporters has said the lack of a top executive has blocked the fledgling agency from taking on a number of tasks in its mandate to police the financial sector and protect consumers from fraud. Mr. Cordray was accompanying the president on the trip, and briefly spoke to reporters.
He said he would begin work immediately, adding: “We’re going to begin working to expand our program to non-banks, which is an area we haven’t been able to touch until now.”
The Constitution gives the president the power to make appointments when the Senate is not in session and able to confirm them. Traditionally, that has been understood to mean when the Senate has adjourned for a recess longer than 10 days, and a Clinton administration legal opinion said a recess must be at least three days.
Mr. Obama’s own top constitutional lawyers affirmed that view in 2010 in another case involving recess appointments. Asked what the standard was for making recess appointments, then-Deputy Solicitor General Neal Katyal told the justices the administration agreed with the three-day rule.
“The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than 3 days,” Mr. Katyal said.