Washington Diary: At last Obama strikes back

By James Fallows

Last month I mentioned that the refusal of Senate Republicans to allow a vote on Richard Cordray's nomination to head the new Consumer Financial Protection Bureau amounted to modern "nullification." As a reminder:

• The CFPB is the post-financial scandal regulatory agency whose inspiration is often credited to Elizabeth Warren;
• Obama shied from naming the "controversial" Warren to run it, which in turn has freed her to challenge Scott Brown this fall for the Senate seat once held by Teddy Kennedy in Massachusetts;
• Republicans have made clear that they have nothing against Cordray, the former attorney general of Ohio, himself as a nominee. They just don't think the agency should be allowed to function, and by preventing a vote on his nomination they can essentially nullify the law that created it. That is because the law's provisions don't come fully into effect until a permanent CFPB director is in place.

Having hesitated through much of last year to call out Senate Republicans on their historically unprecedented reliance on the filibuster, or the nullification strategy being applied at the CPFB and also the National Labor Relations Board (and in a different way, at the Centers for Medicare and Medicaid Services), President Obama has now used the main tool available to him. He has given Cordray a recess appointment to his CFPB role.

Good.

As James Warren explains about the merits of Cordray's choice and Brad Plumer about the procedural issues, Obama is using the powers available to a president, in the face of minority "nullification," to operate the government and also to make his political case. If Scott Brown in Massachusetts and Republican candidates nationwide want to argue that the (modest) financial reforms enacted after the 2008 meltdown should be repealed — fine, let them make that case on the stump this year. If they prevail, they can overturn this law and replace it with what they would like. But until and unless that happens, the CFPB is a legitimately enacted organ of government and should be allowed to function. It is nice to see Obama responding to the realities of today's divided government and clarifying, for both sides, the choices that voters will make this year.

Obama has followed the Cordray news with three more recess appointments, all for members of the National Labor Relations Board. This too was an anti-nullification move, for in refusing to consider any NLRB nominations the Republicans were intentionally denying it a quorum for operations.

In response to Obama's recess appointment of Cordray, Senate Minority Leader Mitch McConnell responded thus, according to CNN: 

"President Obama, in an unprecedented move, has arrogantly circumvented the American people by 'recess' appointing Richard Cordray as director of the new CFPB," said Senate Minority Leader Mitch McConnell in a statement.

Let's take this in order:

"Unprecedented move"? There is some technical dispute about when the Congress is and is not in recess. But the only thing "unprecedented" about Obama's use of recess appointments is how rarely he has done it. According to the Congressional Research Service [PDF], Bill Clinton made 139 recess appointments in 8 years, and George Bush made 171. According to Wikipedia, Obama made 28 in his first three years — or less than half of Bush's rate, 9+ per year versus 21+.

"Arrogantly circumvented"? At the moment, Obama is the elected president of the United States. The Consumer Financial Protection Board was approved by both houses of Congress and duly signed into law by the president. There is no doubt that Cordray would receive a majority Senate vote in favor of his appointment — if the nomination were ever allowed to come to a vote. And Obama is the one "arrogantly circumventing" constitutional processes and the American people? Seriously, this kind of thing need to be called out for what it is: nonsense.

This post was originally published at The Atlantic. Mr Fallows has written further on the subject here.

5 January 2012