Richard Cordray

by Jeremy Leaming

Senate Republicans devoted to protecting big business interests and undermining workers’ rights vigorously fought President Obama’s efforts during his first term to keep the National Labor Relations Board functioning and appoint a leader for the Consumer Financial Protection Bureau.

Republicans in the Senate have long sought to ensure that Obama could not alter the makeup of the NLRB, in order to keep it pro-business or inoperative. Moreover, Senate Republicans were opposed to the creation of the CFPB, intended to crack down on some of the shady business practices that helped lead to the Great Recession; and after its creation they were bent on making it as ineffective as possible.

Earlier today, the Republican agenda of hobbling the NLRB, which exists to enforce the National Labor Relations Act, was advanced by a ruling from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. According to the court, Obama’s appointments to the NLRB in early January 2012 during a 20-day recess of Congress were unconstitutional.

The appeals court opinion is at odds with other rulings from appeals court circuits and the fact that for a century, presidents, citing Article II of the Constitution, have used recess appointments to fill executive branch vacancies.

As The New York Times notes, the appeals court decision “also raises doubts about the legitimacy of Mr. Obama’s recess appointment” of Richard Cordray to the CFPB. Obama appointed Cordray the same time he selected the three members of the labor board. At the time Obama noted that he was forced to make the recess appointments because of the Senate’s refusal to move on his nominations to the board and the bureau. “The American people deserve to have qualified public servants fighting for them every day – whether it is to enforce new consumer protections or uphold the rights of working Americans. We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”  

The opinion by the appeals court panel – all three judges are Republican appointees – is radical and sweeping. Adam Serwer, in a piece for Mother Jones, notes that if the appeals court decision were to be upheld – the Obama administration is likely to appeal it – it would invalidate NLRB decisions made since last January and also impact actions taken by the CFPB.

The CFPB, Serwer writes “has done what liberals hoped and Republicans feared: Prevented companies from gouging consumers with the kind of unscrupulous business practices that caused a nationwide economic meltdown four years ago. Although Cordray’s appointment is being challenged separately, Friday’s ruling gives companies impacted by CFPG’s decisions an opening to argue that some of the CFPB’s actions should be invalidated.”

But constitutional law experts argued at the time Obama made the recess appointments that he was on solid legal ground. In a Jan. 2012 piece for The Times, Harvard constitutional law professor Laurence Tribe said the president’s recess appointments “ought to be a slam dunk” and that the Constitution is clear on “reserving the authority the president needs to carry out his basic duties ….” 

by Jeremy Leaming

A gaggle of senators, typically given to grousing about so-called activist judges, is agitating for court intervention into the president’s recent recess appointments, which The Atlantic’s Andrew Cohen highlights for its hypocrisy.

As Cohen notes, Sens. Charles Grassley (R-Iowa), John Cornyn (R-Texas), Orrin Hatch (R-Utah), Tom Coburn (R-Okla.), Mike Crapo (R-Idaho) and Lindsey Graham (R-S.C.) agreed to join other senators in filing a “friend of the court brief in support of the federal legal challenges to President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau, and three selections to the National Labor Relations Board. On Friday the senators issued a letter about their intent to file the brief, which will argue that the appointments are unconstitutional.

All of those senators, members of the Senate Judiciary Committee, have at one time or another expressed outrage over judges who supposedly legislate from the bench. So Cohen finds “something deliciously hypocritical” of their call for a federal court to take action and nullify the president’s recess appointments.  

Cohen has some advice on how Democrats should respond to the Republicans’ call for judicial action over the administration’s recess appointments, writing, “If I were a Democrat in the Senate, or a White House tribune, I would be responding to the GOP lawsuit letter by loudly doubling down on the concept of having judges determine political procedure. Republicans want the courts involved in recess appointments? Fine. Then they should embrace the notion that the federal courts ought to decide whether the filibuster is constitutional was well. After all, it has less explicit constitutional support than a recess appointment, does it not?”

Since it is likely that the Republican senators do not actually want judges determining the constitutionality of recess appointments or wading into the Senate’s use of the filibuster, they might more seriously focus on reforming procedure. Indeed it was the Senate Republican’s stalling tactics on Cordray’s nomination and the selections to the NLRB that prompted the recess appointments.