House Speaker John Boehner:
“This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department," Boehner said. "The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution."
Senate Minority Leader Mitch McConnell, who has led his caucus an unprecedented scheme of obstruction whines:
"This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer. Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress's role in providing a check on the excesses of the executive branch," McConnell said.
He's joined by Sen. Orrin Hatch (R-UT) who wants to pretend this move was worse than what his caucus has been up to for the past two years:
"This is a very grave decision by this heavy-handed, autocratic White House. Circumventing the Senate and tossing out decades of precedent to appoint an unaccountable czar to appease its liberal base is beneath the office of the president," Hatch said in a statement. "The legislative branch exists as a check and a balance on the executive. By opening this door, the White House is saying it can appoint any person at any time to any position it chooses without the advice and consent of the Senate. This is not how our republic was designed to function."
All of which ignores what the Senate has been doing with this, and numerous other, nominations: nullification. Because they can't repeal Dodd-Frank Wall Street reform, they've been attempting to rewrite the law—passed and signed law—by extortion. If President Obama agreed to completely gut the agency and make it unable to challenge the power of Wall Street, they'd give him his nominee.
Furthermore, as Greg Sargent notes, the "pro forma" sessions tactic has been blasted by President Bush's former legal counsel.
In an Op ed published in the Post in 2010, former Bush legal counsel Steven Bradbury excoriated Senate Dems for using the “pro forma” tactic as part of a complex deal with Senate Republicans. Senate GOPers agreed to approve a raft of Obama nominees in exchange for Senate Dems agreeing to hold the pro forma sessions to block an Obama nominee Republicans opposed.
Bradbury sharply denounced the sessions as “phony,” arguing: “They serve but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.” He urged the President to call the Senate’s bluff in order to avoid more “gridlock.”
This recess appointment is precedent setting. Instead of making the appointment yesterday, in the brief break when the last congressional session ended and the new one began, the White House is directly challenging the Republicans over their tactics. And his picking a very smart target, forcing them to declare their allegiance to Wall Street over America's working families.