There are straightforward political reasons for President Barack Obama’s “recess” appointment of former Ohio Attorney General Richard Cordray to head the Consumer Finance Protection Bureau: Obama’s base wants him to fight big banks and Republicans’ opposition to the agency; and picking a fight with the Hill, especially if it involves breaking a congressional barricade to reform, is surely a winner in the current political climate.
But Obama’s strong-arm override of Republican Senators’ attempt to block Cordray fits with a larger strategy heading into the campaign season: counterattacking the right on the Constitution.
The Republican attempt to block the CFPB from getting up and running was based on the Constitution’s provision granting Congress the power of advice and consent for major executive branch appointments. The courts and successive administrations have held that the President can make appointments when the Congress in is recess in order to prevent Senators from stalling government by not showing up for work. The GOP, following the example set by Democrats under George W. Bush, refused to let the Senate formally go into recess in December.
The White House concluded that this was the equivalent of using a recess to block executive branch action and that the underlying constitutional principle allowed Obama to put Cordray in office. Republicans said this was a further weakening of the traditional impartial role of the Justice Department’s office of legal counsel, which would traditionally have offered an opinion on the matter, but was apparently not consulted by the White House on the decision. The GOP decried the move as unconstitutional. Said Senator Chuck Grassley, “It’s an affront to the constitutional checks and balances.”
The GOP has a point—traditionally OLC would have been consulted on the legality of the issue—and GOP legal éminence grise C. Boyden Gray (who oversaw some 21 recess appointments as George H. W. Bush’s White House counsel) says challenges in the court may follow any actions initiated by Cordray at CFPB. But judging from Obama’s recent moves, that may be exactly what the President and Democrats are looking for.
The earliest indication Obama might be picking constitutional fights came with the decision by Obama’s solicitor general Don Verilli to press ahead late last summer with a Supreme Court case defending the constitutionality of ObamaCare’s individual mandate. Appeals court rulings suggest Obama is the favorite to win, but some analysts on the right are predicting Justice Kennedy will side with the Supreme Court’s conservative bloc and reverse Republican-appointed lower court judges who have supported the mandate’s constitutionality. Either way, with the appeals court rulings in his pocket, Obama can claim he is defending the 20th century interpretation of the Constitution, from FDR forward.
The other big issue Obama and his Justice department have chosen to fight on this year is minority voting rights. This is a red meat issue for the right, who believe the 1965 voting rights act is out of date and has become an affront to the state’s 10th amendment rights to make their own decisions about elections and other issues. But Obama’s attorney general, Eric Holder, has strongly announced his intention to fight to defend the Voting Right’s Act’s protections of minorities against discrimination, saying doing so is key to protecting the constitutional interpretation of the federal government’s role in ending discrimination in the south.