Two weeks since President Obama used a recess appointment to place Richard Cordray in the directorship of the Consumer Financial Protection Bureau, the Washington Times editorial board has condemned the appointment as ‘lawless.’
In a Jan. 19 editorial titled ‘Obama's appointment with tyranny,’ the Washington Times disputed the president's notion that the congressional pro forma sessions were a ‘gimmick’ and stated that the president's actions ‘show he believes checks and balances apply only to the other branches of government, not to him.’ The newspaper also questioned the Jan. 6 internal memo by the Department of Justice that said the recess appointment was legal.
‘While Virginia A. Seitz, assistant attorney general for the Office of Legal Counsel, created an after-the-fact memo to justify the action, it carries no legal weight,’ the editorial stated. ‘Her office is a creature of the executive and, as such, is not qualified to rule definitively on executive actions. It's not the prerogative of the White House to define when the Senate is in recess. Whether a session is pro forma or not, it is still a session regardless of what the executive thinks.’
The editorial also complained that the concept of recess appointment has deviated from the original concept published in the U.S. Constitution.
‘Article II Section 2 allows that 'the president shall have 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,'’ the editorial continued. ‘As a plain reading of the text indicates, this was intended to apply to openings that actually occurred when the Senate was in recess, such as when someone in a relevant office resigned, died or was incapacitated. It was a matter of reasonable convenience for the executive, not an invitation for the president to obviate the will of the people. This was the standard interpretation of the text for over a century.’