Two very important facts to remember about Obama's 'recess' appointments

Two very important and critical facts to remember about President Barack Obama's 'recess' appointments of Richard Cordray to the Consumer Financial Protection Bureau and three nominees to the National Labor Relations Board:

1) Congress is NOT in recess!

Yes, the President does have the ability to make recess appointments, meaning that people serve in his cabinet without the "advice and consent" of Congress - a Constitutional mandate.

However, there is no authority to make an appointment when Congress is still in session. Doing so violates the oath the President took to uphold the Constitution, and is contrary to the procedures designed to serve as a check-and-balance between the branches of government.

The current definition of 'recess' is when Congress is officially not in session for more than three days. Through a procedural action used by Democrats (and supported by then Sen. Obama) when they were trying to prevent President George W. Bush from making recess appointments, the Congress continues to hold "pro forma" sessions every three days. This policy, and the standard of three days, was supported by Democrats as well as Pres. Obama's own administration official, former Acting Solicitor General Neal Katyal.

Katyal, during arguments before the U.S. Supreme Court in 2010, responded to a question about why the President could not bring the NLRB to full strength through a recess appointment by saying, “I think our office has opined the recess has to be longer than three days.”

Between 2007 and the end of his term, Pres. Bush made no recess appointments because the Democrat-controlled House and Senate did not go into recess and, instead, held "pro forma" sessions specifically to prevent such appointments. Unlike our current President, Pres. Bush did not whine and complain and decide to circumvent the Constitution in order to get his way.

In fact, a president hasn’t made a recess appointment during a Senate break of fewer than three days since 1949, according to Betty Koed, an associate Senate historian.

The outrageous hypocrisy of the President and Democrats who supported this procedure in order to prevent a Republican from making recess appointments, but who now praise the violation because it's being done by a Democrat, is simply astounding! And the failure of the media to point out the hypocrisy and double standard is unconscionable and certainly a dereliction of their duty to the public.

2) There are good and valid reasons these people have not been approved by the Senate!

Pres. Obama had warned us that if Congress didn't do what he wanted, he'd go ahead with out them. Despite the clear unconstitutionality (and perhaps impeach-ability) of such actions, we should have believed him. He's out to "fundamentally change" our nation and what better way to do so than to ignore and flaunt the Constitutional mandates placed upon him?

In response to the announcements, United Steel Workers president Leo Gerard said:

"Republicans left the President with no choice but to recess appoint these four people, three to the National Labor Relations Board (NLRB) and one to direct the Consumer Financial Protection Bureau. President Obama showed today that he will use every means at his disposal to circumvent Republican opposition to safeguarding workers and consumers."

The SEIU, on the NLRB appointments, stated:

The appointments bypasses the predictable Republican filibusters or other obstructionist measures they would employ. There is no doubt that if given the shot, the GOP would have done away with the Board entirely, probably the very worst thing working families need right now.

Note the future tense: "measures they would employ."

The fact of the matter is that Pres. Obama only submitted the names for the NLRB on December 15th. The Senate has not, as far as I could tell, even held a hearing on two of them: International Union of Operating Engineers General Counsel Richard Griffin and former attorney to Ted Kennedy, Sharon Block.

As Moe Lane writes:

They have not been in point of fact filibustered; the question hasn’t even arisen yet, given that it’s been all of nineteen days since the names were submitted and a huge chunk of that time was the Christmas/New Year’s break. I’ve heard of… anticipation, but that’s just absurd. If you’re going to try to paint the opposition party as obstructionists, common courtesy dictates that you at least give the opposition party a chance to actually obstruct. Otherwise you’re just being silly.

One hopes that the President is not going to make a habit of this sort of thing…

PS: What’s that I hear? “The GOP was going to obstruct anyway, so it’s perfectly all right for the President to get it over with quickly!” …Do tell. And God, but do I feel sorry for the wife of any man making that particular argument…

So at least for the NLRB, the Congress hasn't even had a chance to act on the nominations, putting lie to the claim that Pres. Obama had to act because of a "do-nothing" Congress or obstruction by the Republicans.

When it comes to the Cordray appointment, the issue has been over the CFPB itself and its accountability, as well as scope of authority.

Pres. Obama nominated Cordray in July and his confirmation was blocked by Republicans only last month. In what has been a stalemate with Pres. Obama, the Republicans have blocked the confirmation as a way to prevent the new agency from being fully operational because they believe the consumer agency's powers are too broad.

CFPB was created under the Frank-Dodd bill, which says the CFPB can't commence operations until after its head is confirmed by the Senate, as Ohio Sen. Rob Portman explains:

The irony is that while this recess appointment may advance the White House’s political goals, it does nothing to advance the work of the CFPB. The statute creating the CFPB makes clear that only Senate confirmation of a Director – not a recess appointment – can activate the new powers of this agency to regulate consumer transactions with Main Street businesses.

As I have said many times, this is not about Rich Cordray, who I believe is a good public servant. Long before he was nominated to be CFPB Director, I expressed my strong concerns about the impact this new regulator would have on all of us as consumers, on job creation, and on our economy, and recommended some commonsense reforms. No other federal regulator has so much authority over personal economic decisions, with so little responsibility to answer to the American people and their elected representatives. These concerns -- voiced by 44 Senators -- cannot be addressed if the White House continues to refuse to work together despite my and others' efforts to reach out to them to find a way forward.

Contrary to the President's claim, the Congress isn't doing 'nothing.' It is, in fact, doing something: taking seriously its charge to advise and consent. Pres. Obama, not liking the advice and not getting his consent, is acting like a child in going ahead anyway.

Of course, he believes that 'standing up to Republicans' and painting himself as 'trying against a do-nothing Congress' is going to help him in the 2012 election - and he may be right politically.

But it's certainly wrong for our nation and our future to blatantly ignore the checks and balances and separation of powers in our Constitution for some hoped-for political advantage.