Cordray appointment probably illegal

[Sallow]

I though Obama studied law at some point.

Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank. Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.

The Volokh Conspiracy » Legality of Cordray Appointment Under Dodd-Frank

So is nullifying the law.

True story

 

[Polk]

What's good for the goose, is good for the gander.

Reid backs Obama after using pro forma sessions to block Bush - The Hill's On The Money

Senate Majority Leader Harry Reid (D-Nev.), who previously held pro forma sessions to block recess appointments by President George W. Bush, said Wednesday he supported President Obama's decision to ignore those sessions to push through one of his key nominees.

"I support President Obama's decision," he said in a statement.

"The White House announced Wednesday that Obama planned to recess appoint Richard Cordray to be director of the new Consumer Financial Protection Bureau (CFPB). However, Republicans immediately cried foul about the move. They argue that because the holiday break has been broken up by brief pro forma sessions, the Senate is not in recess and the appointment is illegitimate....."

".....However, the White House maintains that those sessions, typically held every three days and lasting a few seconds, are not legitimate and can be ignored for the purpose of making recess appointments......"

"......On the other side of the argument at that time was Reid, who began holding pro forma sessions in 2007 to block Bush nominees.

"I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made," he said on the Senate floor in 2008, as Democrats blocked a potential recess appointment of Steven Bradbury to be the assistant attorney general for the Justice Department's Office of Legal Counsel in the Bush administration........"

Somebody on the left wanna try and explain to me why what Obama is doing isn't hypocritical? Bush couldn't do it, but Obama can? Why?

I'm sure someone may try, but they'll fail because it's obviously hypocritical. Just like Frank running around saying Obama is Hitler 2.0 for doing it, while supporting Bush when he did it. It's typical partisanship.

 

[Polk]

I don't care what party you favor- this shameless move by Obama sets a very bad precedent. A precedent that will eventually get around the Constitution's senatorial advice and consent clause all together, because what need is there for a confirmation process when the president can just declare Congress to be in recess whenever he wants?

Sure, but it's no worse of a precedent than allowing a determined minority in the Senate to effectively rewrite the law.

 

[kwc57]

Did any of you ever stop to think that Obama knows the nomination won't hold up, but made the move anyway to draw attention to the issue/provoke a confrontation with the Senate?

The Senate is controlled by his party, so why provoke them? Can't he call old Harry up get him to play ball?

 

[Sallow]

If the Dems in power in the Senate says it was in recess, the minority cannot overrule it. Minority interp does not rule in this case. The courts will rule for the Dems. Republicans have many other problems without fighting a losing one like this.

Ever read the Constitution?

Article 1 Section 5

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

This is why someone shows up every three days and gavels the Senate into a pro forma session, the House never gave them permission to adjourn. The president cannot simply say that, because the Senate is not doing business, they are not in session. Being a constitutional scholar Obama knows this, and also knows that, as president, he has the authority to actually force Congress to adjourn if there is a dispute about when to adjourn. If he had actually done that you might, I repeat might, have a point, since he did not you do not.

This isn't a government of the minority. Congress passed the law to create the Consumer Protection Bureau. The President picked a candidate that both Republicans and Democrats agree is qualified..and this isn't his first choice. The minority party can't simply nullify a law they don't like.

 

[Polk]

Did any of you ever stop to think that Obama knows the nomination won't hold up, but made the move anyway to draw attention to the issue/provoke a confrontation with the Senate?

The Senate is controlled by his party, so why provoke them? Can't he call old Harry up get him to play ball?

Under the new rules crafted by the Republicans, no one controls the Senate unless they have 60+ seats.

 

[Moonglow]

many presidents have appointed during recess.The repubs and dems stonewalled many appointments. This is not new.

 

[Katzndogz]

The issue is going to the courts they will decide whether they will be rubber stamp courts or apply the law.

 

[Polk]

The issue is going to the courts they will decide whether they will be rubber stamp courts or apply the law.

Shorter version: "The court are only good if they agree with me."

 

[kwc57]

If the Dems in power in the Senate says it was in recess, the minority cannot overrule it. Minority interp does not rule in this case. The courts will rule for the Dems. Republicans have many other problems without fighting a losing one like this.

Ever read the Constitution?

Article 1 Section 5

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

This is why someone shows up every three days and gavels the Senate into a pro forma session, the House never gave them permission to adjourn. The president cannot simply say that, because the Senate is not doing business, they are not in session. Being a constitutional scholar Obama knows this, and also knows that, as president, he has the authority to actually force Congress to adjourn if there is a dispute about when to adjourn. If he had actually done that you might, I repeat might, have a point, since he did not you do not.

This isn't a government of the minority. Congress passed the law to create the Consumer Protection Bureau. The President picked a candidate that both Republicans and Democrats agree is qualified..and this isn't his first choice. The minority party can't simply nullify a law they don't like.

http://www.usmessageboard.com/law-a...appointment-probably-illegal.html#post4626574

 

[Bern80]

If the Dems in power in the Senate says it was in recess, the minority cannot overrule it. Minority interp does not rule in this case. The courts will rule for the Dems. Republicans have many other problems without fighting a losing one like this.

Ever read the Constitution?

Article 1 Section 5

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

This is why someone shows up every three days and gavels the Senate into a pro forma session, the House never gave them permission to adjourn. The president cannot simply say that, because the Senate is not doing business, they are not in session. Being a constitutional scholar Obama knows this, and also knows that, as president, he has the authority to actually force Congress to adjourn if there is a dispute about when to adjourn. If he had actually done that you might, I repeat might, have a point, since he did not you do not.

This isn't a government of the minority. Congress passed the law to create the Consumer Protection Bureau. The President picked a candidate that both Republicans and Democrats agree is qualified..and this isn't his first choice. The minority party can't simply nullify a law they don't like.

It isn't about the law or minority trying to rule. It's about the President not following constitutional procedure. Just because a law passes creating the board doesn't mean the President gets to ignore the rules in appointing someone to that board. He did. He can't unilaterally appoint someone to the board unless congress is in recess. It wasn't so he can't. Clear enough for ya?

 

[konradv]

The issue is going to the courts they will decide whether they will be rubber stamp courts or apply the law.

If this has to do with Senate rule, do the courts even have much of a say? That would seem to be up to Reid. If he says the Senate is satisfied, then the Senate's satisfied and "seperation of powers" would be the issue involved, NOT law breaking.

 

[konradv]

It isn't about the law or minority trying to rule. It's about the President not following constitutional procedure. Just because a law passes creating the board doesn't mean the President gets to ignore the rules in appointing someone to that board. He did. He can't unilaterally appoint someone to the board unless congress is in recess. It wasn't so he can't. Clear enough for ya?

You're talking out of both sides of your mouth here. Is it a Constitutional issue or a Senate rules issue? To my mind the Constitution isn't that detailed, so it would seem to be a Senate rule. Since Reid is the leader there, it would seem to be his call, NOT the court's.

 

[kwc57]

It isn't about the law or minority trying to rule. It's about the President not following constitutional procedure. Just because a law passes creating the board doesn't mean the President gets to ignore the rules in appointing someone to that board. He did. He can't unilaterally appoint someone to the board unless congress is in recess. It wasn't so he can't. Clear enough for ya?

You're talking out of both sides of your mouth here. Is it a Constitutional issue or a Senate rules issue? To my mind the Constitution isn't that detailed, so it would seem to be a Senate rule. Since Reid is the leader there, it would seem to be his call, NOT the court's.

What's good for the goose, is good for the gander.

http://thehill.com/blogs/on-the-mon...or-ignoring-pro-forma-sessions-he-once-pushed

Senate Majority Leader Harry Reid (D-Nev.), who previously held pro forma sessions to block recess appointments by President George W. Bush, said Wednesday he supported President Obama's decision to ignore those sessions to push through one of his key nominees.

"I support President Obama's decision," he said in a statement.

"The White House announced Wednesday that Obama planned to recess appoint Richard Cordray to be director of the new Consumer Financial Protection Bureau (CFPB). However, Republicans immediately cried foul about the move. They argue that because the holiday break has been broken up by brief pro forma sessions, the Senate is not in recess and the appointment is illegitimate....."

".....However, the White House maintains that those sessions, typically held every three days and lasting a few seconds, are not legitimate and can be ignored for the purpose of making recess appointments......"

"......On the other side of the argument at that time was Reid, who began holding pro forma sessions in 2007 to block Bush nominees.

"I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made," he said on the Senate floor in 2008, as Democrats blocked a potential recess appointment of Steven Bradbury to be the assistant attorney general for the Justice Department's Office of Legal Counsel in the Bush administration........"

 

[daveman]

The issue is going to the courts they will decide whether they will be rubber stamp courts or apply the law.

If this has to do with Senate rule, do the courts even have much of a say? That would seem to be up to Reid. If he says the Senate is satisfied, then the Senate's satisfied and "seperation of powers" would be the issue involved, NOT law breaking.

Reid is a good lapdog.

Senate Majority Leader Harry Reid (D-Nev.), who previously held pro forma sessions to block recess appointments by President George W. Bush, said Wednesday he supported President Obama's decision to ignore those sessions to push through one of his key nominees.

"I support President Obama's decision," he said in a statement.

--

On the other side of the argument at that time was Reid, who began holding pro forma sessions in 2007 to block Bush nominees.

"I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made," he said on the Senate floor in 2008, as Democrats blocked a potential recess appointment of Steven Bradbury to be the assistant attorney general for the Justice Department's Office of Legal Counsel in the Bush administration. Bradbury is one of the attorneys cited by the Obama White House in justifying the Cordray move.​

When Bush does it = bad.

When Obama does it = good.

If it weren't for double standards, leftists would have no standards at all.

 

[Bern80]

It isn't about the law or minority trying to rule. It's about the President not following constitutional procedure. Just because a law passes creating the board doesn't mean the President gets to ignore the rules in appointing someone to that board. He did. He can't unilaterally appoint someone to the board unless congress is in recess. It wasn't so he can't. Clear enough for ya?

You're talking out of both sides of your mouth here. Is it a Constitutional issue or a Senate rules issue? To my mind the Constitution isn't that detailed, so it would seem to be a Senate rule. Since Reid is the leader there, it would seem to be his call, NOT the court's.

It is senate rules issue as outlined by the constitution. The consitution is actually quite long if you've actually read it. And the above mentioned rule is indeed in it.

Article I, Section 6, clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

That is what has to happen in order for the President to be able to do this (as also stated in the constitution):

Articlee II , Section 2, Clause 3

The President shall have Power 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 first didn't happen so the President can't do the second. I will give Reid some credit in that while I think it was a bush league tactic when he did it to Bush, at the very least he made sure he was conforming with the constitution.

 

[konradv]

It isn't about the law or minority trying to rule. It's about the President not following constitutional procedure. Just because a law passes creating the board doesn't mean the President gets to ignore the rules in appointing someone to that board. He did. He can't unilaterally appoint someone to the board unless congress is in recess. It wasn't so he can't. Clear enough for ya?

You're talking out of both sides of your mouth here. Is it a Constitutional issue or a Senate rules issue? To my mind the Constitution isn't that detailed, so it would seem to be a Senate rule. Since Reid is the leader there, it would seem to be his call, NOT the court's.

It is senate rules issue as outlined by the constitution. The consitution is actually quite long if you've actually read it. And the above mentioned rule is indeed in it.

Article I, Section 6, clause 4 reads:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Don't see how that applies. If they're adjourning normally, consent is implied

 

[Bern80]

You're talking out of both sides of your mouth here. Is it a Constitutional issue or a Senate rules issue? To my mind the Constitution isn't that detailed, so it would seem to be a Senate rule. Since Reid is the leader there, it would seem to be his call, NOT the court's.

It is senate rules issue as outlined by the constitution. The consitution is actually quite long if you've actually read it. And the above mentioned rule is indeed in it.

Article I, Section 6, clause 4 reads:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Don't see how that applies. If they're adjourning normally, consent is implied

Says who? That's awfully convenient don't you think to assume that the Senate simply asjourning is de facto consent for the house to adjourn and vic versa. Sorry bud. Doens't work that way. Show some integrity and admit when you're wrong.

 

[JakeStarkey]

Ever read the Constitution? Article 1 Section 5 This is why someone shows up every three days and gavels the Senate into a pro forma session, the House never gave them permission to adjourn. The president cannot simply say that, because the Senate is not doing business, they are not in session. Being a constitutional scholar Obama knows this, and also knows that, as president, he has the authority to actually force Congress to adjourn if there is a dispute about when to adjourn. If he had actually done that you might, I repeat might, have a point, since he did not you do not.

This isn't a government of the minority. Congress passed the law to create the Consumer Protection Bureau. The President picked a candidate that both Republicans and Democrats agree is qualified..and this isn't his first choice. The minority party can't simply nullify a law they don't like.

It isn't about the law or minority trying to rule. It's about the President not following constitutional procedure. Just because a law passes creating the board doesn't mean the President gets to ignore the rules in appointing someone to that board. He did. He can't unilaterally appoint someone to the board unless congress is in recess. It wasn't so he can't. Clear enough for ya?

Pro forma to obstruct is not constitutional, Obama demonstrated that, and obstructionists of both parties will never be able to do this again. End of story.

 

[Polk]

You're talking out of both sides of your mouth here. Is it a Constitutional issue or a Senate rules issue? To my mind the Constitution isn't that detailed, so it would seem to be a Senate rule. Since Reid is the leader there, it would seem to be his call, NOT the court's.

It is senate rules issue as outlined by the constitution. The consitution is actually quite long if you've actually read it. And the above mentioned rule is indeed in it.

Article I, Section 6, clause 4 reads:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Don't see how that applies. If they're adjourning normally, consent is implied

Consent cannot be implied in this case. The argument that the President has the authority to do this (I would note that I disagree with his legal team's theory) rests on the fact that no business can be conducted in these pro forma sessions, and therefore the Senate isn't actually in session.