WASHINGTON — Republicans and Democrats on the House Judiciary Committee clashed repeatedly on Wednesday over the legality of President Barack Obama’s recent recess appointments.
Committee Chairman Lamar Smith, R-Texas, said the president circumvented the rules of the Senate when he appointed Richard Cordray on Jan. 4 to lead the newly formed Consumer Financial Protection Bureau without Senate approval.
“America’s elected leaders swear to follow our Constitution and our statutes even when they do not agree with them,” Smith said.
Obama has argued the appointments were allowed because the Senate was in recess, which is the only time a president can make such appointments without Senate confirmation. But Republicans say the Senate actually was in session. Many Republicans opposed the creation of the consumer bureau.
Republican members of the House committee said presidents of both parties have made controversial recess appointments, but Obama’s violated the appointments clause in the Constitution. Rep. Trent Franks, R-Ariz., chairman of the Constitution subcommittee, said the executive branch was concentrating the power of appointments.
“Never before has a president made a recess appointment when the Senate was not in recess,” Franks said.
Smith pointed to a statement from Senate Majority Leader Harry Reid from 2007 when Reid said, “The Senate will be coming in for pro forma sessions … to prevent recess appointments.” Smith said the same rationale used to prevent a Republican president from making appointments should apply to a Democrat president.
“What was acceptable for the Constitution in 2007 should be equally acceptable today,” Smith said.
Smith said Article I, Section 5 of the Constitution charges the Senate itself to determine “the rules of its proceedings,” and the Senate did not believe it was in recess when the appointments were made. It was conducting pro forma sessions to accomplish important business such as the temporary extension of the payroll tax cut, he said.
Charles Cooper, a leading Washington litigator and constitutional law expert, said the Senate was in fact in session when Obama made his appointments. He said as long as the Senate was available to pass issues by unanimous consent, it was available to confirm nominees. He said Obama’s appointments were purely political.
“It has nothing to do with availability to act, it has to do with willingness to act,” Cooper said.
Rep. John Conyers, the top Democrat on the committee, said the appointments were necessary to fill positions that had been left open for long periods due to partisan standoffs in the Senate. He said Americans need people to occupy the jobs but are only getting “obstructionism and empty benches.”
Rep. Jerrold Nadler, the top Democrat on the constitutional subcommittee, said he was uncertain why the hearing was even needed in the House. The appointments are the Senate’s problem and should be permitted due to the need for qualified officeholders, said Nadler.
The Cordray appointment is noteworthy because Republican senators have made it clear to the executive branch that they would not approve any nominee to head the CFPB. In a letter sent to the president, 44 senators – enough to mount a filibuster — said they would not appoint a director until the structure of the CFPB is changed. Jonathan Turley, professor at the George Washington University, told the House committee that he considers Cordray well-qualified, but the appointment undermines the balance of power in the Constitution. He called the Cordray appointment “a perfect constitutional storm” because it contained several controversial elements.