“Scary” Act Of “Imperial Presidency”: Fox & Friends Attacks Cordray Appointment

Kilmeade: Obama Has “Essentially Declare[d] Congress Null And Void.” On the January 5 edition of Fox News' Fox & Friends, co-host Brian Kilmeade reacted to Cordray's appointment by claiming that "[i]t's kind of scary" and that President Obama “essentially declare[d] Congress null and void.” From Fox & Friends:

KILMEADE: It's kind of scary in that he's pressing the edges of the Constitution by doing so and he's also making -- no doubt about it -- fraying the relationship between Republicans in Congress and the presidency. Just what kind of year is this going to be? A day after getting back from Hawaii, he essentially declares Congress null and void. I'm going to do what I want. [Fox News, Fox & Friends, 1/5/12]

Doocy Claims Recess Appointments Are “All Part Of [Obama's] Plan To Go Around Congress.” Later during the broadcast, co-host Steve Doocy claimed that the recess appointments were “all part of [Obama's] plan to go around Congress.” Doocy then said that “it will probably all be part of his re-election strategy.” [Fox News, Fox & Friends, 1/5/12]

Fox's Johnson: Obama's Recess Appointments Are A “Vigilante Act Of An Imperial Presidency.” Later on the broadcast, Fox News legal analyst Peter Johnson Jr. called the recess appointments a “vigilante act of an imperial presidency.” From Fox & Friends:

KILMEADE: Peter is this -- is this allowed?

JOHNSON: This is for an imperial presidency. In my view, this is not a recess appointment. A recess appointment means that the president is not complying with Article 2, Section 2, of the Constitution that gives the Senate the opportunity to confirm people.

KILMEADE: Right.

JOHNSON: And that can be done when the Senate is not in session. The Senate was in session, but the president said, “Well, no, that's a gimmick. I don't believe that you're really in session. So I'm going to do what I want because this needs to be done in terms of my people in the labor community and in terms of stopping predator lending and like that. So I'm going to do it.” So, in my view, this is a vigilante act of an imperial presidency.

Johnson later asked, “If our chief executive doesn't have respect for the law, then what does that say about the respect for other executives, other branches of government in terms of abiding by the Constitution?” [Fox News, Fox & Friends, 1/5/12, via Media Matters]

But Fox & Friends Ignored Fact That Republicans Are Engaged In Unprecedented Obstructionism Against Obama Nominees ...

Hundreds Of Obama Nominees Are Currently Awaiting Confirmation. According to the White House website that tracks nominations and confirmations, there are currently more than 200 outstanding executive and judicial nominees who have not been confirmed. [WhiteHouse.gov, accessed 1/4/12]

GOP Senators Opposed Cordray Nomination Over “Structure And Scope” Of Consumer Protection Agency, Not His Qualifications Or Opinions. On December 8, 2011, Senate Republicans blocked Obama's nomination of Cordray to be the director of the CFPB. As Politico reported: “Republicans made clear they had no qualms with Cordray himself, and they insisted they back 'strong and effective oversight.' But they were peeved that Obama had ignored concerns they raised seven months ago about the structure and scope of the agency.” [Politico, 12/8/11]

• Sen. Sherrod Brown: Senate Historian Told Me This “Has Never Happened.” In a December 7, 2011, interview with PBS, Sen. Sherrod Brown (D-OH) said that he had asked a Senate historian, “Has this ever happened, where one political party has opposed a nominee solely because they don't like the agency over which he -- which he will run?” Brown said that Senate historian told him “that has never happened.” [PBS.org, 12/7/11]

CAC: “More Than 80 Vacancies” On The Federal Bench Thanks To “The Slow Pace Of Judicial Confirmations In The Senate.” An August 2011 memo from the Constitutional Accountability Center (CAC) noted:

At a time when caseloads in our federal courts are at a record high the Senate's confirmation process for judicial nominees has failed to keep pace with new judicial vacancies. This has stretched the federal judiciary, already overextended, close to its breaking point. While the number of judicial vacancies typically increases at the beginning of a new presidency, a rapid decline usually follows. The Obama Presidency has seen that trend broken. Never before has the number of vacancies risen so sharply and remained so high for so long during a President's term. For 764 straight days there have been more than 80 vacancies on the federal bench, and there is no end in sight. The only other time the number of judicial vacancies has stood above 80 for so long was a completely anomalous period after Congress established 85 new judgeships in 1990.

[...]

The slow pace of judicial confirmations in the Senate has seen the number of judicial vacancies explode from 55 when President Obama took office to 88 today. Furthermore, an additional 23 future vacancies are already announced, at least five of which will occur in August 2011. Such a high number of vacancies so far into a President's term is unprecedented. At this time during George W. Bush's presidency, the number of vacancies had been reduced to 52, even though he entered office with 80 vacancies. Similarly, at this time during Bill Clinton's presidency, there were only 63 vacancies, even though he encountered 109 when he first took office.

The memo also included the following graphic comparing the number of judicial vacancies over the first 31 months of several recent presidencies:

[Constitutional Accountability Center, 8/4/11, emphasis original]

The House Is Preventing The Senate From Recessing For Longer Than Three Days. From a December 2011 Congressional Research Service (CRS) report:

During the first few months of the 112th Congress, the House and Senate passed concurrent resolutions of adjournment prior to periods of absence of more than three days. Throughout this period, the Senate did not use the pro forma session practice during the resulting recesses.

During the middle of the first session of the 112th Congress, a new related practice appeared to emerge. On May 25, 2011, in a letter to Speaker of the House John Boehner, 20 Senators urged him “to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president's term.” The letter stated that “President Obama has used recess appointments to fill powerful positions with individuals whose views are so outside the mainstream that they cannot be confirmed by the Senate of the United States,” and it referred to the Senate practices of 2007 as “a successful attempt to thwart President Bush's recess appointment powers.” The request of the Senators appeared intended to similarly block President Obama from using the recess appointment power.

In a June 15, 2011 letter to the Speaker of the House, the House majority leader, and the House majority whip, 78 Representatives requested that “all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress.”

As of December 8, 2011, no concurrent resolution of adjournment had been introduced in either chamber since May 12, 2011. During periods of extended absence, the Senate has used pro forma sessions to avoid recesses of more than three days. [Congressional Research Service, “Recess Appointments: Frequently Asked Questions,” 12/12/11]

Obama Has Made Fewer Recess Appointments Than Previous Presidents. From the December 2011 CRS report:

President William J. Clinton made 139 recess appointments, 95 to full-time positions. President George W. Bush made 171 recess appointments, of which 99 were to full-time positions. As of December 8, 2011, President Barack Obama had made 28 recess appointments, all to full-time positions. [Congressional Research Service, “Recess Appointments: Frequently Asked Questions,” 12/12/11]

... And Bush Legal Officials Have Suggested Obama Exercise His Recess Appointment Power

In 2010, Former Bush OLC Head And Deputy Assistant AG Urged Obama To Consider “Exercising His Recess Appointment Power To Challenge The Use Of Pro Forma Sessions.” From an October 2010 op-ed in The Washington Post by Steven G. Bradbury and John P. Elwood, who, from 2005 to 2009, served as the head of the Office of Legal Counsel (OLC) in the Justice Department and deputy assistant attorney general, respectively:

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit.

The alternative will likely be greater gridlock in Washington. This practice will inevitably become the standard operating procedure, and the recess appointment power could become a virtual dead letter -- undermining what the Founders viewed as an essential tool for the effective functioning of our government. [The Washington Post, 10/15/10]

• In A Follow-Up, Elwood Outlined Argument Why Pro Forma Sessions At Which No Business Is Conducted Do Not Interrupt A Recess Of The Senate. From a blog post by Elwood on the libertarian blog Volokh Conspiracy:

In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”

Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate's ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate's ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att'y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt's decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.

It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.

S. Rep. No. 58-4389, at 2 (1905).

The argument is that the sort of pro forma sessions that are now going on don't give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President's exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices. Cf. McAlpin v. Dana, No. 82-582, slip op. at 14 (D.D.C. Oct. 5, 1982) ("[T]here is no reason to believe that the President's recess appointment power is less important than the Senate's power to subject nominees to the confirmation process."). [Volokh Conspiracy, 1/4/12]