Today was the day that legal experts and many aides in both parties thought President Obama would provide a recess appointment to Richard Cordray, his nominee to administer the new Consumer Financial Protection Bureau.
The rationale is quite technical, but here’s the bottom line: one reading of the Constitution and of executive branch administrative law suggest that today is Obama’s last day to recess appoint any of his languishing nominees, at least until the next time the Senate leaves town several weeks from now.
But a senior administration official who would not be quoted told reporters at a White House background briefing Tuesday that Obama will not take advantage of that opening.
The official declined to provide further explanation, but the decision implies one of three things: that Obama does not believe he’s encumbered by technical restrictions on his power to recess appoint nominees and can still act between now and late January when Senators return to town; that he will instead wait until a future recess when feels he has more running room and political capital to recess appoint Cordray and others; or that he has no intention of challenging Congressional Republicans by making further recess appointments between now and the end of this Congress.
Obama’s been gun-shy about recess appointments compared to his predecessors — a reluctance that frustrates his progressive critics. But he also has taken a firm stance on Cordray, and many observers believed — and continue to believe — that a recess appointment is still in the works.
In a bid to block Obama’s recess appointments, Congressional Republicans have been forcing the Senate to hold “pro forma” sessions. In these, every three days a nearby Senator heads to the Capitol, gavels into and out of session, and thus prevents a technical “recess.”
Presidents typically respect this precedent, but the Constitution doesn’t tie their hands. Moreover, today is the day that the Senate switches from the first to the second session of the 112th Congress — and Obama could have used the extremely brief window in between those sessions to make any number of appointments. Senate Republicans were well aware of this threat, and made that clear in a number of public statements.
Just before winter recess, Senate Minority Leader Mitch McConnell announced, “We are ready and willing to move forward, by [unanimous] consent, with a package of nominations to positions in both the executive and judicial branches — just as soon as I receive confirmation from the administration that it will respect practice and precedent on recess appointments, we can get these people confirmed.”
Those are the words of someone who knows the President still has options. The President just isn’t availing himself of them at the moment.
The CFPB was created as part of the 2010 Wall Street reform bill to police fraudulent financial actors and products. Its powers are severely limited, however, by the absence of a full time administrator.
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at email@example.com.