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If CFPB Nominee Richard Cordray Is Not Confirmed, Obama Should Invoke The Roosevelt Precedent To Appoint Him

By Ian Millhiser  

"If CFPB Nominee Richard Cordray Is Not Confirmed, Obama Should Invoke The Roosevelt Precedent To Appoint Him"

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Last year, Congress enacted a law creating a Consumer Financial Protection Bureau (CFPB) to protect ordinary Americans from some of Wall Street and the banking industry’s worst abuses, and the Senate is expected to vote on CFPB Director-in-waiting Richard Cordray’s nomination this Thursday. Nearly every Senate Republican, however, signed a letter pledging to sabotage this agency by refusing to confirm anyone to lead it. And congressional Republicans manipulated the Senate’s calendar in a way that they claim — falsely — strips President Obama of his power to make recess appointments.

Should the Senate GOP keep its promise to filibuster Cordray, however, President Obama will soon have an airtight opportunity to recess appoint him to lead this essential agency. All that Obama needs to do is invoke the Roosevelt Precedent:

[T]his winter, Congress must adjourn — at least briefly — to inaugurate the new session of Congress. Theodore Roosevelt used such a brief intersession adjournment to ram through an appointment during his administration. From a congressional report on recess appointments:

Although President Theodore Roosevelt once made recess appointments during an intersession recess of less than one day, the shortest recess during which appointments have been made during the past 20 years was 10 days. Appointments made during short recesses (less than 30 days) have sometimes aroused controversy, and they may involve a political cost for the president.

Such an appointment would not be without political controversy — but would likely be upheld as legal given the Roosevelt precedent.

Each day the Senate GOP gets away with its unprecedented obstructionism makes a mockery of the rule of law. The CFPB was created by an Act of Congress, and it cannot be repealed except through an intervening law — not by kneejerk obstructionism by the minority party in the Senate. The Senate GOP’s nihilistic tactics require Obama to use all constitutional tools at his disposal to ensure that the law actually means something, and that includes invoking the Roosevelt Precedent if necessary.

Simply put, it’s time for President Obama to speak softly, and carry a big stick.

‹ Justiceline: December 6, 2011

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