Advocates explore constitutional options to appoint consumer agency nominee

Consumer groups are calling on President Obama to seize rarely-used powers in the Constitution to make a recess appointee out of consumer financial watchdog nominee Richard Cordray.

Obama’s efforts to appoint Cordray to the Consumer Financial Protection Bureau created by the Wall Street reform bill have been hampered by Republicans, who have blocked the nomination.

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House Republicans who have kept Congress occupied in pro forma sessions have made it all but impossible for Obama to use his recess appointment powers.

But Cordray backers point out that the Constitution allows for the president to actually force the chambers to adjourn, which could open the door to a recess appointment.

Article 2, Section 3 of the Constitution states that on if there is a disagreement about when the chambers should adjourn, the president has the power to “adjourn them to such time as he shall think proper.”

The only problem with that? The power has never been used before.

Nonetheless, David Arkush, director of Public Citizen’s Congress Watch division, argues Obama clearly has the authority to do just that. Public Citizen is a consumer advocacy organization that is a strong supporter of the CFPB.

“That’s absolutely clear in the Constitution. I think it’s incontestable,” he said.

He also argues the president has another window to recess appoint Cordray.

The 20th Amendment of the Constitution states that the Congress shall assemble at least once a year, with each session beginning at noon on Jan. 3. That means that, however small the window might be, the Congress would have to break from the first session of the 112th Congress to begin its second session, giving Obama an opening.

On this front, Obama would at least have a small amount of historical precedent.

Theodore Roosevelt, who Obama sought to channel during a speech in Kansas this week, once made a recess appointment between two sessions of Congress that was less than a day long. But it is likely that such a move would incite fierce criticism from congressional Republicans, who have warned the president to not try and skirt the confirmation process.

Arkush maintained that if Obama could just get Cordray in place, it would take a major effort to unseat him.

“He’s got historical precedent and he has momentum,” he said. “If somebody wants to stop him, they’re going to have to figure out how.”

Pleas for a recess appointment for the head of the CFPB have been coming from liberal and consumer groups for months, and actually precede Cordray’s nomination. When liberal favorite Elizabeth Warren was still setting up the bureau and no director had been officially nominated, 44 GOP senators announced in May they would block any nominee to direct the agency until several structural changes were made to the agency.

After Cordray’s nomination was halted in the Senate Thursday, Obama vowed that he was not giving up on the selection, and did not rule out a potential recess appointment, saying nothing was “off the table.”

“I just want to give a message to the Senate — we are not giving up on this,” he said.

The Senate has not been at recess long enough to allow for an appointment for months, as lawmakers have been meeting in brief “pro forma” sessions during longer breaks in a bid to block such attempts.

Those sessions, which typically last just minutes with a handful of members present, exist thanks to Article 1, Section 5 of the U.S. Constitution, which states that neither chamber will adjourn for more than three days without the consent of the other.

If House Republicans do not agree to the Senate’s recess or vice versa, those brief sessions are required. GOP members have forced several of these sessions over the last few months, precisely to block recess appointments.

The shortest window a president has used to make a recess appointment in the last two decades was nine days, according to a 2008 report by the Congressional Research Service (CRS).

Liberal and consumer groups, including the AFL-CIO, as well as several House Democrats, have called on the White House to circumvent Republicans with a recess appointment. They argued that since defeat of any nomination was now assured, the president had no choice but to make a recess appointment.

Calls for a recess appoint only intensified after the Senate failed to advance the selection Thursday, coming up short of the 60 votes required to overcome a filibuster, 53-45.

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Even if the president does use recess appointment powers to put Cordray in place, the move still has its flaws beyond harsh GOP criticism. Cordray’s stint as director after a recess appointment would be a fraction of what he would have been able to serve as a confirmed director.

By statute, the CFPB director is supposed to serve a five-year term. But a recess appointment only remains effective for the duration of the existing Congress, giving Cordray roughly a year as director before the 112th Congress draws to a close at the end of 2012.

The president could re-nominate Cordray to the position after that shortened term expired, but he would likely face even fiercer opposition from Senate Republicans a second time around.