Bucking Senate, Obama Appoints Consumer Chief

Bucking Senate, Obama Appoints Consumer Chief

SHAKER HEIGHTS, Ohio — President Obama touched off a fierce election-year confrontation with Congressional Republicans on Wednesday, defying their deep opposition to appoint Richard Cordray as director of a new consumer protection agency and fill three labor board vacancies.
The decision to install the four nominees without Senate approval under the constitutional provision for making appointments when lawmakers are in recess was a provocative opening salvo in Mr. Obama’s re-election strategy of demonizing Congress. It threatened to ignite a legal challenge and left Republicans fuming that the president was abusing the recess privilege.

Mr. Obama, announcing his decision before a political rally-like crowd of 1,300 at a high school here in a suburb Mr. Cordray’s hometown of Cleveland, seemed to welcome a contentious second session of the 112th Congress, in which any attempts at bipartisan compromise appear in danger of being lost in all-out election-year war.

“I refuse to take ‘no’ for an answer,” Mr. Obama said, adding, “I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve.”

Building on efforts to cast himself as a protector of the middle class, the president portrayed Mr. Cordray as his hand-picked protector of consumers in his role as director of the Consumer Financial Protection Bureau. He wasted no time in painting Republican opposition to Mr. Cordray as another sign of the party putting the interests of Wall Street above the concerns of ordinary Americans.

Putting Mr. Cordray in place grants the agency the standing to move ahead with new regulation of varied financial entities, authority it has lacked in the absence of a director since its creation in July 2010.

With the three appointments to the National Labor Relations Board, Mr. Obama moved to ensure that the board, which has five seats, would not become paralyzed. The board shrank to two members when the term of a previous Democratic recess appointee expired on Tuesday, and under a Supreme Court ruling, it is not allowed to make decisions with fewer than three members.

As if making appointments while members were out of town was not enough to enrage Republicans, the fact that Mr. Obama made them to two entities that have been top targets of the party amplified the angry response.

Republicans, who began attacking the administration’s move hours before Mr. Obama officially announced it, argued that it was unconstitutional and called it a brazen attempt to undercut the role of the Senate to advise and consent the executive branch on appointments.

“This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department,” the House speaker, John A. Boehner, said in a prepared statement. “The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution.”

Republicans had attempted to block the president from installing nominees they opposed over the long break by holding “pro forma” sessions over the holidays, in which members of both chambers — usually those who live in states close to the Capitol — gavel in for minutes or even seconds before gaveling out to try to meet the definition of holding a Congressional meeting. Senate Democrats had taken similar steps to block President George W. Bush from making what are known as recess appointments, which can last up to two years. Until Wednesday, the tactic had prevented two administrations from putting their choices in place without Senate confirmation.

The action by Mr. Obama immediately sparked questions of what constitutes an actual Congressional recess, the legality of Mr. Obama’s move and the future of the Congressional confirmation process.

“The legislative branch exists as a check and a balance on the executive,” Senator Orrin Hatch, Republican of Utah, said in a statement. “By opening this door, the White House is saying it can appoint any person at any time to any position it chooses without the advice and consent of the Senate. This is not how our republic was designed to function.”

But following an internal review, the administration legal team decided that Congress was effectively in recess even though it was holding the pro forma sessions at which no business was conducted.

“Can the Senate, through form, render a constitutional power of the executive obsolete? Our view is that the answer to that question is clearly no,” Kathryn Ruemmler, Mr. Obama’s White House counsel, said in an interview.

By blocking Mr. Cordray’s appointment after he received majority support in the Senate — he was impeded by a filibuster after being nominated in July — Congressional Republicans may have handed Mr. Obama another cudgel to hit them with this year, and the White House tried to pick an opportune time to wield it. The recess appointments seemed deliberately timed, coming a day after the Iowa caucus vote and seemed intended to rile the Republicans.

There had been debate over whether Mr. Obama could have avoided a constitutional challenge by making the appointment on Tuesday in the short window between the end of the first and beginning of the second session of the 112th Congress. By moving ahead after the new session started, the president may have provided Republicans a chance to argue that, technically, the recess appointment was invalid.

Some legal specialists said it was likely that the Supreme Court would eventually have an opportunity to review whether it was lawful for Mr. Obama to grant the recess appointments despite the fact that the Senate was technically in session: after the consumer agency starts issuing regulations, someone who does not want to obey one of them could file a lawsuit that would turn on whether Mr. Cordray’s appointment was valid.

Jay Carney, the White House press secretary, said White House lawyers were confident Mr. Obama had the authority to make the appointment. “When pro forma sessions are simply used as an attempt to stop the president from making an appointment,” he said, then the president is within his rights to move ahead.

The White House and other Democrats also repeatedly pointed out that Republicans had said they had no objections to Mr. Cordray himself and found him qualified, but they wanted to use his nomination as leverage to win significant changes in the agency he was to head before confirming him.

Mr. Cordray, a former Ohio attorney general, accompanied the president Wednesday. He looked slightly shell-shocked when he got off Marine One to board Air Force One for the flight to Cleveland, clutching his brown folder to his chest as he walked to the plane.

But he sounded ready for battle once the plane landed and reporters cornered him under the wing, issuing a not-so-veiled warning to Wall Street.

“We’re going to begin working to expand our program to nonbanks, which is an area we haven’t been able to touch before now,” he said.

Charlie Savage contributed reporting from Washington, and Steven Greenhouse from New York.