A Constitutional Moment
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
President Obama’s decision to use a recess appointment to put through the nominee he wanted for the Consumer Financial Protection Bureau sets up one of those constitutional moments we’ve been writing about in these columns for the past couple of years. It’s unclear how far the Republicans will be able to push their objections, if at all. But it’s hard to see how the president comes out of the showdown anything other than a big winner, simply for the attempt to assert his constitutional powers.
These powers are granted him in Section 2 of Article II of the Constitution, where it says that the president shall have the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Heretofore, Mr. Obama has been what one would have to call timid — dainty, might even be the term — in respect of the recess appointment power. President Eisenhower, a champion recess appointer, installed three justices on the Supreme Court without saying so much as how-do-you-do to the Senate.
It happens that this newspaper is against the independence of the Consumer Financial Protection Bureau, which reports to neither the president nor the Congress. But we’d welcome a fight over the recess appointment. “Playing with fire” is how an editorial of the Bloomberg View characterizes the president’s action. It strikes us that the Senate is also playing with fire by having its pro-forma micro sessions every three days precisely to avoid going into recess. Is that the way the Founders reckoned things would work?
In any event, there is no shortage of checks and balances that can be tested, some for the first time, in this fight. For one thing, the Constitution, to prevent one house from hamstringing the other, plainly forbids either house of Congress from adjourning for more than three days (or adjourning to any other place) without the consent of the other house. So the House of Representatives, which is currently controlled by the Republican Party, might have something to say in respect of the antics of the World’s Greatest Deliberative Body, as the Senate used to be called. Let us see what Speaker Boehner is made of.
And then there is the “extraordinary Occasions” clause. It occurs in Article II, which creates the presidency. In the third section of the article, the Constitution says that 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.” According to “The Citizen’s Constitution, An Annotated Guide,” the president’s adjournment power has never been used. Is this an “extraordinary Occasion” on which it might be? All we can say is, “Yo, ho, ho and a bottle of rum.”
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Beyond the question of presidential powers lies the big issue with the Consumer Financial Protection Bureau, which is not its director. Rather it is that it is seated within the Federal Reserve. By forcing the creation of yet another regulatory regime and by situating it within the Fed and having the Fed fund it, the Democrats have only stoked the movement that questions the constitutionality and the logic of the Fed itself. We are coming up on the 100th anniversary of an institution that has presided over the collapse of the very currency it was assigned to guard. It is a scandal that will be looked back on with horror by the historians who will see this test of presidential powers as but a footnote in a much larger tragedy.