The Department of Justice
released its legal opinion Thursday advising White House counsel that President Obama had legal authority to make the recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau
"Although the Senate will have held pro forma sessions regularly from Jan. 3 through Jan. 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to 'receive communications from the President or participate as a body in making appointments," the DOJ said in the opinion
the recess appointment on Jan. 4.
Senate Republicans blocked a vote on the nominee since July, demanding reforms for the bureau. Instead of a single director, they wanted a five-member commission, Congressional control of the CFPB budget and to make it easier for an oversight council to veto any bureau rules.
Beginning in 2007, the Senate held these pro forma sessions that last only a few seconds and require the presence of just one Senator. Orders adopted by unanimous consent show that there will be no business conducted during these sessions. Instead, they're merely used to break up a longer recess in Congress into sections deemed by some to be too short to be considered an actual "recess," according to the opinion.
But because some Senators have publicly stated they do not consider pro forma sessions to interrupt a recess, it therefore isn't a unanimous consent. The DOJ said precedent shows that convening during these periodic pro forma sessions in which no business is conducted "does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a 'Recess of the Senate' under the Recess Appointments Clause."
Recess appointments occurred as far back the George Washington administration, and by 1943 it had become almost routine, according to the opinion.
When it comes to making recess appointments while the pro forma sessions were ongoing, the DOJ said communications between the executive branch and the Senate are not formally conducted and even the Senate itself sets aside its own nominations even though pro forma sessions are ongoing.
"In this context, the president therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments," the DOJ concluded.
Not everyone agrees. House Republicans reacted to the Cordray appointment, calling the move unconstitutional.
"If it weren't for his track record of trampling the Constitution to suit his political needs, I would say this announcement came as a surprise," said Rep. Scott Garrett, R-N.J. after the Cordray announcement.
Rep. Spencer Bachus claimed the recess appointment "delegitimized" the CFPB.
"The greatest threat to our economy right now is uncertainty, and the President just guaranteed there will be even more uncertainty," Bachus said.
Still others rushed to the president's defense in support of the legality of the move and the efforts to protect consumers.
"With Richard Cordray leading the Consumer Financial Protection Bureau, Americans will finally get the consumer protections they deserve," said Sen. Tim Johnson, D-S.D. "Mr. Cordray is eminently qualified for the job, as even my Senate Republican colleagues have acknowledged."
After the successful block by Republicans in December, Rep. Barney Frank, D-Mass., even claimed Senate Republicans were the ones in violation of the Constitution by filibustering a vote on a nominee, a right he said is reserved for legislation.
"Using the filibuster in this way to block a confirmation vote wrenches the U.S. Constitution off its moorings," Frank said.
Jaret Seiberg, an analyst with Guggenheim Partners
in Washington, said the Cordray appointment would actually be a plus for banks as the CFPB now has the authority to even the playing field and regulate nonbank lenders.
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