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Obama's consumer chief appointment could spark legal spat

Barack Obama, Richard Cordray
President Barack Obama shakes hands with Richard Cordray AP Photo/Haraz N. Ghanbari

SHAKER HEIGHTS, Ohio -- The words "recess appointment" didn't pass President Obama's lips here today as he made it clear he would no longer wait for Senate confirmation of Richard Cordray as director of the Consumer Financial Protection Bureau.

Instead Mr. Obama appointed Cordray to the post - in an action that circumvents the Senate process of Advise and Consent.

His aides claim the Senate was in recess and so Mr. Obama could use his constitutional powers to install Cordray in the job as a recess appointment.

Whoa!, yelped Republican congressional leaders. The Senate's not in recess, they said. In fact, it's been holding pro-forma sessions every 3 or 4 days. They pointed out that it was during one of those pro-forma sessions on December 23, with only 2 members of the Senate on the floor, both Democrats, that the Senate approved by unanimous consent, the bill Mr. Obama wanted to extend the 2011 payroll tax cut for two months into the New Year. Mr. Obama got to sign it into law three hours later before departing to join his family in Hawaii for 11 days.

Back from the Aloha state, Mr. Obama decided Wednesday to show the nation his patience had run out since using a Rose Garden ceremony in July to announce his nomination of Cordray to run the banking watchdog agency.

Later in the day, the White House announced the president's recess appointments of three nominees to the National Labor Relations Board.

The White House says it has legal opinions to validate the claim that the Senate was in recess.

"The president's counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks," said spokesman Jay Carney during an airborne briefing on Air Force One, en route to Ohio.

"The Constitution provides the president the right to make appointments during Senate recesses, and the president will use that authority to make this appointment.," Carney said.

Carney said the president had similar validation in a legal opinion written by the Office of Legal Counsel at the Justice Department during the George W. Bush administration.

It was that same Office of Legal Counsel that the Obama White House cited last spring when it announced Mr. Obama, in France, had authorized his staff secretary back at the White House to sign a bill into law by running it under the Autopen, the mechanical device that can produce a reasonable facsimile of the president's signature.

The Constitution requires that the president "sign" a bill to make it law. It provides no exception for the use of a substitute device or person.

Similarly, the Constitution does not designate the president, or anyone in the executive branch, as the arbiter of whether either chamber of Congress is in recess.

No one has yet challenged the use of the Autopen to sign legislation into law, though it's an issue that cries out for a Supreme Court ruling.

But a challenge is certain to be filed against the recess appointment of Richard Cordray and whether it was made when the Senate was genuinely in recess.

"I expect the courts will find the appointment to be illegitimate," said Speaker of the House John Boehner of the Cordray appointment, in a rapid response to the president's action.

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