In 2010, Congress passed and President Obama signed a law creating the Consumer Financial Protection Bureau. Shortly thereafter, Senate Republicans promised to effectively render this agency a nullity by refusing to confirm anyone to head it — no matter who President Obama nominated. In other words, despite the fact that the Constitution requires a new Act of Congress to clear both houses and the presidential veto power in order to eliminate the CFPB, Senate Republicans thought they could make an end-run around the Constitution by not allowing anyone to be appointed to the one key position within the agency. Eventually, President Obama blocked this attack on the rule of law by recess appointing Richard Cordray to head the CFPB.
Last week, the severely conservative United States Court of Appeals for the D.C. Circuit embraced the Senate GOP’s end-run around the Constitution by declaring these recess appointments unconstitutional. Indeed, the D.C. Circuit didn’t just declare these appointments unconstitutional, it declared most modern recess appointments unconstitutional as well. If the court’s surprising rationale is upheld on appeal, it would effectively remove the recess power from the Constitution altogether.
In an interview with MSNBC on Tuesday, Sen. Lamar Alexander (R-TN) rooted for this outcome — claiming Republicans should be allowed to hollow out the entire federal government by refusing to confirm anyone at all if they chose:
CHUCK TODD: The president of one party could be in the White House — get elected. There could be a political part that controls the Senate on the other side — so then the president has no recourse if that United States Senate of the opposite part of the president decides “you know what? We’re shutting down the confirmation process,” because, you know that can be done. Is that what . . . there’s no recourse at all for the executive branch here?
ALEXANDER: Yeah, the next election is the recourse for the executive branch. . . .
TODD: You can hold up cabinet appointments for four years?
ALEXANDER: It could be two years, yeah. Of course it could. . . . The president has to keep sending people until he finds someone who can gain the support of the senate.
For the record, we just had “the next election” and President Obama won — as did Senate Democrats, who picked up two seats in a year when the overwhelming majority of the seats in dispute had Democratic incumbents. And President Obama can’t “keep sending people” until he finds a CFPB head Senate Republicans will not filibuster because Republicans promised to block anyone Obama nominates.