Obama, Cordray, and Nullification: A Cautionary View

In response to this item a few hours ago, congratulating Barack Obama on the recess appointment of Richard Cordray to the Consumer Financial Protection Bureau, Mike Lofgren writes to demur. Lofgren, as a reminder, is a former long-time Republican Senate staffer who has recently been writing about the destructive extremism of the current Congressional Republican party. He says now:

President Obama's recess appointment of the head of the Consumer Financial Protection Bureau may have more ambiguities than you suggested. You have focused on the GOP's bad-faith motivations in blocking the confirmation of Richard Cordray in order to nullify the force and effect of duly enacted legislation, and we can agree on that. This fight may also benefit Obama politically. But it may not benefit the agency Cordray will oversee; and the constitutionality of Obama's appointment is problematic.
 
By Obama's having raised the political stakes, every regulatory decision the CFPB makes will be even more politically freighted in an election season. One can assume every affected business will sue the government in federal court on the grounds that the bureau did not have the authority to make that decision. Their reasoning might go as follows: the CFPB's director did not have statutory authority to make the decision because (a) the underlying statute creating the CFPB requires a Senate-confirmed director; and (b), in the event the director was for some reason not Senate-confirmed, he would have to be a valid recess appointment. Cordray was an improper recess appointment as the Senate was technically in pro forma session at the time of his appointment.
 
That is what plaintiffs will argue, and you may be certain the Chamber of Commerce and other business lobbies will spend whatever it takes to litigate the issue all the way to the Supreme Court. And how confident are you that the Roberts/Scalia Court of the Citizens United decision, the same court that largely invalidated the honest services fraud statute, would rule against corporations and for the government in this case?
 
Beyond those legal points lies the larger political context. Four years ago, you could be sure that if President Bush had made a recess appointment when the Senate was in pro forma session, the liberal blogosphere would have been incandescent with rage. It's always that way. Contemporary politics follows the template of Vladimir Lenin's basic precept: kto-kogo, literally "who-whom," meaning who does what to whom. Lenin believed that revolutionary violence committed by the vanguard of the proletariat (a group conveniently defined by him alone) was legitimate. Violence committed against the vanguard of the proletariat, on the other hand, was illegitimate. That's what Washington has become: if our side makes dodgy recess appointments, it is for the greater good (as we define it); if the other side uses the same tactics, it's an outrage against nature and the sacred Constitution. We all practice in-group favoritism in everyday life and in our ideological preferences, but we must make a conscious effort not to let it degenerate into chronic double-think. As for statutes and their interpretation by courts, their whole purpose is to apply consistent rules and restrain such irrational favoritism. The real culprit is that partisan politics has driven out comity and good faith to such an extent that the occasion even arises that recess appointments of this nature must occur.
 
To risk a further digression, there is the issue of proportionality and consistency: all those Republicans seething with indignation over the questionable appointment of a government official as being an affront to the Constitution did not (with some honorable exceptions) have any problem voting for a Defense Authorization Act that invalidated portions of the fifth, sixth, and eight amendments to the Bill of Rights, as well as article 3, section 3 of the Constitution pertaining to treason. That individual rights are worth less than corporate rights is ultimately why the CFPB is being undermined in the first place, and the only effective solution is to get all corporate money out of politics.

And, a reader in California writes to point out a kind of nullification effort by Democratic legislators against Gov. Mitch Daniels and his administration in Indiana. It hasn't been going on for 5+ years, like what we've been seeing the U.S. Senate, but for the record here it is.

Finally, my friend Timothy Noah is concerned about the legal basis for these recess appointments. OTOH two GW Bush-era Justice Department officials are on record in favor of the approach Obama has used in "calling the Senate's bluff" on its habit of staging pretend sessions to avoid ever officially being in "recess" and then allowing appointments like Cordray's. Judge for yourself. Based on what I see, Obama was right to make this move. And -- go figure -- Sen. Scott Brown, R-MA, is in favor of the appointment too.