Bloomberg News

Obama’s Cordray Move Signals Readiness for Brawling Campaign

January 11, 2012

Jan. 5 (Bloomberg) -- President Barack Obama signaled readiness for a brawling election campaign by bypassing the U.S. Senate on high-profile appointments after disappointing supporters for not taking a stronger stance against Republicans.

The president’s defiance of congressional Republicans in naming a consumer financial watchdog and three National Labor Relations Board members without Senate consent may harm the chances of other nominees requiring confirmation for the rest of his term and also end in court.

Yet Obama’s decision to make the appointments during a brief Senate recess helps frame his election-year gambit of running against a gridlocked Congress. “We can’t wait,” the White House has thematically signaled with this and other moves to act upon matters where Congress has blocked the president.

It’s a fighting stance for a president facing a Republican leader, Mitch McConnell, who said his goal is to make Obama a one-term president. Obama has drawn criticism from fellow Democrats for giving in to Republicans on other matters such as continuing President George W. Bush’s tax cuts for upper-income Americans.

Republican leaders issued angry rebukes over Obama’s recess appointments yesterday and suggested courts may bar the move.

The action “threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch,” said McConnell, Senate minority leader and a Kentucky Republican.

House Speaker John Boehner, an Ohio Republican, said Obama made an “extraordinary and entirely unprecedented power grab” in naming Richard Cordray to lead the Consumer Financial Protection Bureau.

Tough Tactics

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Tough tactics by Republicans slowed many confirmations to a crawl during Obama’s administration and led some nominees to withdraw their names after delays. A White House statement said 181 nominees are pending before the Senate, with an average waiting time of 165 days.

President Bill Clinton made 95 recess appointments to full- time positions, according to the Congressional Research Service, while Bush made 99. A president hasn’t made a recess appointment during a Senate break of fewer than three days since 1949, said Betty Koed, an associate Senate historian.

Federal Reserve

With other key appointments pending, including two picks for Federal Reserve Board governors as well as the two top posts at the Federal Deposit Insurance Corp., Obama’s move risks igniting further opposition, said Eric Ueland, who was chief of staff to former Senate Majority Leader Bill Frist, a Tennessee Republican.

“Members of the Senate will be looking even more carefully at how the Obama administration operates, the nominees it selects and what it might choose to do if facing well-founded resistance against confirmation,” said Ueland, now a vice president at the Duberstein Group in Washington.

Obama yesterday accused Republicans of blocking Cordray’s confirmation because they want to weaken the Dodd-Frank financial regulatory law that created the agency. His move was backed by top Democratic leaders, including Senate Majority Leader Harry Reid of Nevada, House Minority Leader Nancy Pelosi of California and Senate Banking Committee Chairman Tim Johnson of South Dakota.

‘People at Risk’

“When Congress refuses to act and as a result hurts our economy and puts people at risk, then I have an obligation as president to do what I can without them,” Obama said at a high school in Shaker Heights, Ohio.

Obama nominated Cordray to be the bureau’s first director in July, and Republicans blocked his Senate confirmation last month. Yesterday’s labor board appointees are Sharon Block and Richard Griffin, nominated last month, and Terence F. Flynn, whose nomination had been stalled since last January.

The Constitution gives presidents the power to make appointments when the Senate is in recess. Republicans won bipartisan agreement to keep Congress in pro forma sessions every three days through the holidays to keep Obama from making recess appointments. Almost all Senate Republicans oppose Cordray’s nomination because they say the consumer agency’s powers are too broad.

Obama’s appointments went beyond the power asserted by most previous administrations to install officials without Senate action.

Postal Service

In a 1993 case involving the Postal Service Board of Governors, Justice Department lawyers argued that presidents can make recess appointments when the Senate is out of session for more than three days. The court papers suggested that a president might lack that authority during shorter breaks.

A legal challenge is likely, possibly by a business affected by the consumer bureau’s oversight, said C. Boyden Gray, White House counsel under President George H.W. Bush. The U.S. Chamber of Commerce is also considering a lawsuit, said David Hirschmann, president of the group’s Center for Capital Markets Competitiveness.

The appointment “makes a mockery of the confirmation process,” said Gray, who became ambassador to the European Union in 2006 when George W. Bush appointed him during a congressional recess. “It’s been a pretty well-accepted consensus over the last two decades that you have to have a minimum of at least three days.”

‘Unilateral Power’

Another veteran of George W. Bush’s administration, former Deputy Assistant Attorney General John Elwood, said Obama probably was acting within his authority.

“The alternative would be giving the Senate the unilateral power to prevent the president from making recess appointments,” Elwood said.

Only a handful of court cases have tested the recess- appointment power. The boundaries have instead been defined over time through “give and take” between the president and the Senate, said Edward A. Hartnett, a professor at Seton Hall University School of Law in Newark, New Jersey.

“Presidents push and senators push back,” Hartnett said.

After lawmakers return to Washington later this month, Obama has a cluster of posts he is trying to fill, including the comptroller of the currency and more than three dozen federal judgeships.

‘Poisons the Well’

Senator John Cornyn of Texas, a member of the Senate Republican leadership team, said Obama’s move “poisons the well further” on confirmations and makes clear the president “has decided to politic fulltime.”

Some former lawmakers, though, said the president’s risks are low given Republican animosity toward many of his nominees.

“It seems to me that it’s hard to injure a relationship that isn’t working at all,” said former Senator Byron Dorgan, a North Dakota Democrat who is now a lobbyist. “The wrestling match about recess appointments has gone on for a long time, and will in the future as well.”

Obama is probably helped by taking on Republican congressional leaders before he faces voters, said former Senator Arlen Specter, who represented Pennsylvania as a Republican starting in 1981 before changing his party affiliation to Democratic in 2009.

“Besides being good public policy, it’s good politics,” Specter said. “It shows that the president’s prepared to move ahead in a decisive manner to circumvent gridlock in Washington being caused by filibuster in the Senate and the Tea Party in the House.”

--With assistance from Hans Nichols, Greg Stohr, Phil Mattingly and Margaret Talev in Washington. Editors: Laurie Asseo, Jim Rubin.

To contact the reporters on this story: Laura Litvan in Washington at llitvan@bloomberg.net; Kathleen Hunter in Washington at khunter9@bloomberg.net

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net


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