Congressional officials said President Obama has used his recess appointment powers Wednesday to name a head for the controversial new Consumer Financial Protection Bureau in a move Republican lawmakers said amounted to an unconstitutional power grab.
Mr. Obama made the appointment of former Ohio Attorney General Richard Cordray even though the Senate, which has the power to confirm nominees, considers itself still in session.
But the White House argues Republican senators stonewalled the nominee for so long that Mr. Obama had no choice but to circumvent them.
In making the appointment, Mr. Obama rejected the precedent set by former President Clinton and the precedent Mr. Obama and his fellow Democrats set under President George W. Bush in 2007 and 2008.
“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.
GOP House Speaker John A. Boehner called the move “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 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,” the Ohio Republican said in a statement.
Administration officials told the Associated Press they anticipate the move may be challenged in court.
The president is expected to introduce Mr. Cordray during a trip to Ohio Wednesday, and in prepared remarks the AP reported Mr. Obama will call Senate Republicans’ ongoing blockade of his nomination “inexcusable.”
“I refuse to take ‘No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” according to the prepared remarks.
The Constitution gives the president the power to make appointments when the Senate is not in session and able to confirm them. Traditionally that has been understood to mean when the Senate has adjourned for a recess longer than 10 days, and a Clinton administration legal opinion said a recess must be at least three days.
Mr. Obama, though, acted only a day after the Senate held a session, albeit an abbreviated one with no real business transacted.
Mr. Obama’s move also contradicts the precedent he and fellow Democrats abided by in 2007 and 2008 when they used the same three-day strategy to prevent Mr. Bush from making his own recess appointments.
“I am keeping the Senate in pro forma to prevent recess appointments until we get this process back on track,” Senate Majority Leader Harry Reid, Nevada Democrat, said on Nov. 16, 2007, as he announced his strategy of having the Senate convene twice a week for pro forma sessions.
On Wednesday, though, Mr. Reid said he backed the president’s move.
“I support President Obama’s decision to make sure that in these tough economic times, middle-class families in Nevada and across the country will have the advocate they deserve to fight on their behalf against the reckless practices that denied so many their economic security,” he said.
But by abrogating decades of understanding of the recess appointment power Mr. Obama threatened to spark a full legislative war with Congress.
“Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch,” Mr. McConnell said.