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Breaking precedent, thwarting obstruction

Richard Cordray is a former attorney general of Ohio, and he was chief enforcement officer of the Consumer Financial Protection Bureau when it opened last year. Democrats and Republicans in Washington largely agree that he's qualified to be director of the bureau, as President Barack Obama nominated him to be months ago. But we all know the punch line that comes next.

Cordray's nomination never got a vote. Congressional Republicans don't like the Consumer Financial Protection Bureau, which Congress approved as part of the 2010 Dodd-Frank Act, and they vowed to block any nominee to lead it unless Democrats moved to weaken the bureau's structure and powers. But last week, Obama defied those Republicans and used a recess appointment to install Cordray atop the bureau while the Senate was out of town. The GOP, predictably, is howling.

All of which we've seen before. History is filled with lawmakers blocking nominations, followed by presidents using the side entrance of a recess appointment, followed by the requisite wailing about executive branch power grabbing.

This time, however, there's a constitutional twist. Republicans attempted to block such recess appointments by holding sham "pro forma" sessions, which allowed them to say they weren't in recess. Senate Minority Leader Mitch McConnell has thus called Obama's move "unprecedented" because long-standing protocol allowed recess appointments only when the Senate was in recess 10 days or longer.

Was Obama's maneuver illegal? The Constitution says neither chamber may take a break of more than three days without permission of the other, but it doesn't declare that anything less isn't a recess. A 2011 report prepared for Congress by the nonpartisan Congressional Research Service says the Constitution doesn't specify how long the Senate should be in recess before an appointment can be made.

Protocol involving recess appointments is largely based on precedent, but precedent is a flimsy thing. Pro forma sessions, for example, broke precedent when they were first used by Democrats just four years ago. So essentially, Obama has decided to circumvent a relatively new tactic with a very old one - thumbing his nose at it. And unlike N.C. House Republicans, whom we criticized last week for a dark-of-night veto override they could have done at any time, Obama took the only step available to him, thanks to Republicans blocking the traditional paths.

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