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Sarah A. Binder (Brookings):
So did the president play unfairly during recess? Is the appointment on tenuous legal ground? Although Republicans will likely challenge the appointment in court, it’s hard for me to see the Cordray appointment as more than an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB. The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation. And the most recent court case on the matter—when Democratic Senator Ted Kennedy challenged the intra-session recess appointment of William Pryor to the 11th Circuit Court of Appeals in 2004—upheld the right of the administration to make a recess appointment on the 7th day of a ten day intrasession recess, noting the Constitutional ambiguity of a “recess.” (The Supreme Court declined to take up the case.) Nor does the longer historical record help us much in evaluating the president’s exercise of the recess appointment power. Intra-session recesses were rare before the 1940s given the structure of the Congressional calendar for much of the Congress’s history. Presidents from both parties have made intra-session recess appointments, and they’ll continue to.
Brad Plumer:
Yesterday, a loophole briefly arose. As TPM’s Brian Beutler reported, the 112th Congress was technically switching between sessions, which meant there was a brief flurry of seconds when Congress wasn’t technically in session and Obama could’ve rushed to appoint Cordray — or fill any other vacancies. A Congressional Research Service brief (PDF) notes that Teddy Roosevelt did this way back in 1903, filling 160 recess appointments, mostly military officers, in a few minutes’ time.
Obama didn’t take advantage of that loophole. Instead, the Wall Street Journal reports, White House lawyers have simply concluded that this Republican “pro forma” strategy is irrelevant and that they can recess-appoint Cordray anyway. As a side bonus, recess-appointing Cordray now rather than yesterday means his appointment will last through the end of 2013, rather than through the end of 2012.
Chris Cillizza:
The near-tie in Tuesday night’s Iowa Republican caucuses left the political world wondering: Who really won?
By the numbers, former Massachusetts governor Mitt Romney did — claiming 30,015 votes to 30,008 for former Pennsylvania senator Rick Santorum.
But, measured by the candidate who gained the most from what happened in Iowa, it’s clear that Santorum emerged victorious.
EJ Dionne:
I love watching Republicans engage in class warfare. They condemn it as a sin when Democrats come within 100 miles of even mentioning the sharp and growing class inequalities in the United States. But when conservatives play the class card, they see it as a high ethical calling involving the defense of good and moral folk against the depredations of a liberal elite.
Blatant hypocrisy is instructive.
Greg Dworkin (that's me)/The Arena:
We’ve all talked about Ron Paul’s ceiling, which is quite real. Iowa is as good as it’s going to get for him. But Mitt Romney (for now) has one, too. Three out of four Iowans just voted for someone other than Romney. And while Rick Santorum beat expectations (also for now) he doesn’t get the solo spotlight he desperately needs.
After it’s all said and done, Iowans would really prefer someone else.
George Will:
White voters without college education — economically anxious and culturally conservative — were called “Reagan Democrats” when they were considered only seasonal Republicans because of Ronald Reagan. Today they are called the Republican base.
Who is more apt to energize them: Santorum, who is from them, or Romney, who is desperately seeking enthusiasm?
Will is contemplating a Romney loss in the general and not liking it.
Einer Elhauge (New England Journal of Medicine):
The parties who have brought legal challenges to the Accountable Care Act's (ACA's) individual mandate to obtain health insurance claim that the Constitution's Commerce Clause authorizes the regulation of only commercial activity, not inactivity, and thus gives Congress no power to force individuals to buy a product. They argue that if the Supreme Court were to hold otherwise, then Congress could force us all to buy anything, from General Motors cars to broccoli. This claim is a red herring, however, because Congress could force precisely the same purchases even if the Supreme Court were to accept their arguments.
Gallup:
PPP:
It's funny that for all the talk of the changing electoral map that Florida, Ohio, and Pennsylvania are still the key states. But Obama's continued strength in Virginia and Colorado now makes it so that he only needs to win one out of that trio of states to get to 270 electoral votes, where John Kerry and Al Gore both lost because of their inability to carry two of them.
Clearly there is a very wide range of possibilities for what will happen this fall but Obama's pretty well positioned to get to 270.