It's done. President Obama has
made a recess appointment naming Richard Cordray to head the CFPB.
Congressional Republicans have been warning against such a move, and preparing to attack it as a "power grab," despite having spent the middle of the last decade attacking the opposite practice—that is, filibustering presidential nominees—a power grab. But as so often happens in politics, the shoe being on the other foot, things have changed.
The case for the Cordray appointment is a strong one. After all, the outrage fails the old "show me in the Constitution where it says you can't do that" test. And of course, the Republican opposition to Cordray's appointment is now out in the open as a naked play to unwrite the legislation authorizing the CFPB by filibuster, since the votes aren't there to openly repeal it.
Is it a "power grab"? Yes it is. But consider what's being grabbed, and from where. It's a fact that such an appointment would not violate the Constitution, in the sense that the Constitution doesn't actually say anywhere how long a recess has to be in order to permit recess appointments to be made. That's something about which a sort of consensus has been reached over the years, but there's no hard and fast rule about it.
But it's also important to note what gave rise to this consensus. According to the Congressional Research Service (CRS), it's based on Department of Justice briefs dating from the Clinton administration (see this PDF file), filed in cases disputing previous recess appointments. And on the question of just how long a recess had to last in order for a president to make appointments, the answer apparently was: three days. Why three days? That's likely derived from the fact that that's the maximum amount of time that one house of Congress can adjourn without the agreement of the other. So the thinking was that any period shorter than that wouldn't represent a Congressional agreement to adjourn.
But more important than the reasoning behind the three-day threshold is the fact that this consensus came out of the executive branch, and was persuasive as an argument for that reason. The legislative branch hasn't had much to say on the subject, and in fact hasn't got much in the way of mechanisms through which to say it. It is, after all, an executive power and not a legislative one. Even the power to declare a recess of the legislature is, ultimately, left within the power of the executive according to Article II, section 3 of the Constitution:
[The president] may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper [...]
The three-day consensus, ultimately, was a limitation the executive branch put on itself (though it's also one they've been minimizing slowly, over time). So although it's a new interpretation that does open the door to an exercise of greater power, it's unclear from whom the power has been "grabbed."
As far as broader context goes, this move is one of several that should open the door to reexamining at least some of "the rules as we know them." Consider that the filibuster boogeyman was miraculously disappeared from the path of the so-called "Super Committee" last year. And that Senate Democrats succeeded in October in using a majority-rules procedure to eliminate an abusive bit of Republican obstructionism, and the world didn't end. Now that we're also able to add the use of a recess appointment during a recess of less than the magical number of days to the list, perhaps it's time to reexamine just how well the "tied hands" explanations employed in past confrontations hold up.
Ordinarily, I prefer a reliable set of rules, agreed upon at the outset. But when the game gets taken outside of what should be done (or what should be expected, anyway) and into that theoretical world of what can be done if you're willing to break with convention, it's sometimes difficult to close the barn door after just one particular horse. It certainly sets the mind to thinking about what else might be (or might have been) possible. But just as a final hedge—and in anticipation of questions about "why didn't this happen for Elizabeth Warren?"—I have to add that the rules of situational politics haven't been erased here. An earlier recess appointment, or the appointment of a different person, might very well have played differently. Those dynamics are always in flux, and operate in parallel to the raw mechanics. The point I really wanted to make is that no matter how many times I explain the rules, the truth is that they're made to be broken.