Cordray and NLRB Appointments Unconstitutional

Reagan Attorney General Ed Meese and Todd Gaziano, both with my employer The Heritage Foundation, have written an excellent piece in the Washington Post explaining why the installation of Richard Cordray as head of the newly created Consumer Financial Protection Bureau (CFPB) and Richard Griffin, Sharon Block and Terence Flynn to be on the National Labor Relations Board (NLRB) are unconstitutional acts.The president claimed to use the constitutional power of the president to make recess appointments.


As another Heritage colleague, Hans von Spakovsky, explains for Pajamas Media, Congress is not in recess. The Senate actually conducted some very important business during one of the “pro-forma” sessions the White House has called a “gimmick”: On Dec. 23, it passed the payroll tax extension that caused such a political uproar in Washington.

Congress has five options to respond to this power grab by the executive branch of the federal government:

  1. Filibuster all nominations and deny unanimous consent to the waiver of any rule with regard to nominations until these four unconstitutional appointments are rescinded
  2. Condition passage of all must-pass legislation on the rescission of these unconstitutional appointments
  3. Conduct vigorous oversight to demand the production of witnesses and documents supporting the president’s legal theory justifying this unprecedented power grab
  4. Make major cuts in funding of the NLRB and the Department of the Treasury where the CFPB was placed by its authorizing statute
  5. Pursue legal remedies to get those unconstitutionally appointed officials out of office. 

As Meese and Gaziano point out, “if Congress does not resist, the injury is not just to its branch but ultimately to the people.”Separation of powers exists to protect liberty and to protect the rights of democratically elected senators to participate in the nominations process.This is a “tyrannical usurpation of power” by President Obama, and Congress must act quickly to restore an appropriate balance between the executive and legislative branches of the federal government.


Meese and Gaziano write about a 1985 precedent for strong action by the Senate and the options on the table for Congress.

Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all “must-pass” legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.

The legislative branch of government has the power to “Advice and Consent” to presidential nominations.  President Obama has violated circumvented that provision in the constitution by falsely claiming that the senate is out of session when they are in session.  Even the Senator Harry Reid (D-NV) of early 2009 would disagree with President Obama today.

Senate Majority Leader Harry Reid in January of 2009 used pro-forma sessions to block President George W. Bush from making last minute recess appointments.

Senate Majority Leader  Harry M. Reid (D-Nev.) accused Bush of slow-walking the Democratic picks for those commissions. In addition, Democrats grew fearful that Bush would use recess appointments to install nominees that Democrats had been rejecting for confirmation. So for a two-week break around Thanksgiving 2007, Reid ordered up the pro forma sessions, calling on Sen.  James Webb (D-Va.), who lives closest to the Capitol, to oversee the sessions.


Evidently, Reid has changed his position on this important constitutional issue.  Many lefties are cheering from the cheap seats the actions of President Obama by claiming that the current “pro-forma” sessions of Congress are the functional equivalent of a recess.  Ezra Klein of the Washington Post is one of those justifying this unprecedented exercise of executive power.

The Obama administration is taking the position that, legally speaking, pro forma sessions are recesses — the Constitution is very vague on what is and isn’t a recess — and is making recess appointments anyway.

Andrew Grossman of The Heritage Foundation points out that President Obama’s actions speak louder than words when he signed a bill passed in “pro-forma” session which commenced on December 17, 2011.

Proof is that on December 23, President Obama signed a two-month extension of the payroll tax cut.  He said that Congress passed the bill “in the nick of time” and that it was “a make-or-break moment for the middle class in this country.”  The compromise extension really did come through at the last minute, but in a different sense: most members of the Senate had already departed Washington, D.C.

According to the Obama Administration, the two month extension of payroll taxes was passed during a recess.  Does that mean that the law is invalid?  The Obama Administration is clearly trying to have it both ways by signing a bill that passed in what they would deem a recess, yet later claiming that a following pro-forma session is a recess. 


The President is not empowered by the Constitution to decree when the Congress is or is not in recess.  This tyrannical power grab must not stand. 




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