Obama Plans Recess Appointment of Richard Cordray: It’s a Good Idea, But I Want to See the Legal Brief

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

Apparently President Obama has decided that playing patty cake with Republican senators is no longer a winning proposition, and he now plans to make a recess appointment of Richard Cordray to head up the new Consumer Financial Protection Bureau despite the fact that the Senate is technically in a “pro forma session” and hasn’t recessed. Politically, this is pretty defensible: Senate Republicans have refused to allow a vote on Cordray not because of any problems with Cordray himself, but because they simply want to prevent the CFPB from functioning. They’re opposed to any CFPB head. Since the CFPB was created by a vote of Congress and the signature of the president, this is little more than modern-day nullification.

But even if this is politically defensible, is it also legally defensible? The Wall Street Journal reports:

White House attorneys have concluded they have the legal authority to make a recess appointment despite Republican efforts to block the move, Democrats said Tuesday, and administration officials say they reserve the option to install Richard Cordray as head of the new Consumer Financial Protection Bureau without Senate approval.

….The White House has concluded that it can make the appointment even if the Senate has not formally recessed, said one Democrat familiar with White House thinking. “They have decided no one can stop them.”

This all sounds fine to me, since I think the pro forma sessions are nothing more than a sham. But I also hope that Obama makes his legal reasoning public. This is, after all, a unilateral declaration of expanded executive power, and we’ve had way too many of those in recent years based on shoddy legal justifications that were kept secret. Obama’s decision may end up in court, where his legal reasoning will become public regardless, but I hope he doesn’t wait for that. If White House lawyers have written a brief justifying Cordray’s appointment, let’s make it public and allow everyone to see it.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate