Just read the Constitution

    In true Pavolvian fashion, Republicans are scaling new heights of hyperbole as they assail President Obama for dodging their usual obstructionism and naming Richard Cordray as director of the new financial industry watchdog agency.How dare he take advantage of the fact that the Senate is out of town. How dare he not knuckle under to their ongoing efforts to cripple the new Consumer Financial Protection Bureau before it has even begun. How dare he not allow the Senate minority to gum up the works on behalf of the very same financial interests that helped trigger the Wall Street meltdown.Senate Minority Leader Mitch McConnell says that Obama “has arrogantly circumvented the American people.” House Speaker John Boehner says that Obama has engineered “an extraordinary and entirely unprecedented power grab.” On TV, Fox News “legal analyst” Peter Johnson thunders, “This is the viligante act of an imperial presidency.” On the campaign trail, Mitt Romney says that Obama’s move is “Chicago-style politics at its worst.” And Rick Santorum says that Senate Republicans should “go to the ramparts,” threaten a Senate shutdown, and tell Obama, “You are not above the law Mr. President. The law doesn’t say you can do this.”Actually, the law most certainly does. These people make my job so easy.During this holiday season, the GOP has contrived to keep the Senate in session for a few minutes every three days (these are known as “pro-forma” sessions, where no actual business is conducted), in order to dissuade Obama from making any recess appointments. Many past presidents, including George W. Bush, have taken that route when the Senate is idle, in order to rescue nominees from senatorial limbo. Cordray was in limbo for months. Article II, Section 3 of the U.S. Constitution states: “The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.”The GOP can’t refute that language – they are, after all, strict constructionists who purport to revere the literal meaning of the Founders – so they have concocted a different grievance. They contend that Obama has put himself above the law – as an “emperor,” to quote Santorum – because he appointed Cordray during a very short recess. The custom since 1993 has been to define a recess as any interim lasting three days or longer, yet here is Obama naming Cordray as the nation’s financial industry watchdog…within a three-day window. Man the ramparts!But Obama haters whose heads have detonated would be well advised to visit reality. The highest body to rule on the recess appointment issue is the U.S. Court of Appeals. In its 2004 decision Evans v. Stephens, the Eleventh Circuit clearly stated:”The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.” (Italics are mine.)Seriously, is that so hard to understand? Or is the literal meaning of the Constitution no longer an animating priority for the GOP?Indeed, way back in 1903, Republican Theodore Roosevelt took full advantage of the fact that the Founders set no minimum time limit. During one Senate recess that lasted just a few minutes, he appointed 160 nominees. Don’t today’s Republicans know their own history? Apparently, this kind of recess maneuver is a “power grab” only when Obama does it.Indeed, some legal experts have long contended that Obama should challenge the Senate GOP’s trickery. As two attorneys wrote in The Washington Post 15 months ago, “What’s the point of these phony ‘pro forma sessions’? They serve but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments. A novelty first seen during the waning months of the Bush administration, the pro forma session threatens to become a permanent roadblock in the already dysfunctional appointments process…The president should consider calling the Senate’s bluff by exercising his recess appointment power to challenge the use of pro forma sessions.”The authors, Steven Bradbury and John Elwood, were high-ranking lawyers in the Justice Department…under George W. Bush. I’ll bet that they, as well as others who grasp the literal meaning of the Constitution, would be reluctant to join Rick Santorum on the ramparts. ——-Follow me on Twitter, @dickpolman1

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