In a National Review Online essay published yesterday (and noted by Mike Riggs this morning), Berkeley law professor John Yoo criticizes President Obama's "recess" appointment of Richard Cordray to head the Consumer Financial Protection Bureau. This is not the first time that Yoo, who as a Justice Department attorney during the Bush administration became notorious for pushing executive power to alarming extremes, has urged President Obama to respect constitutional limits on his authority. In January 2009, before Obama had even taken office, Yoo warned him against the temptation to sneak "a new Kyoto climate accord" or other international treaties through Congress without the requisite two-thirds vote by the Senate. Lest you think that Yoo worries about presidential presumption only when the president is a Democrat, he opens his NRO piece by conceding that he is "often" a "zealous advocate of executive power…when it comes to national security issues." The implication is that the president's powers ebb when he is not dealing with such issues. Yet given how elastic the concept has become, it would not be hard for Obama to offer a national security rationale for efforts to alleviate global warming or protect consumers of financial services from fraud. How can the nation be truly secure, after all, if the world is in turmoil because of catatstrophic climate change or if Americans stop borrowing money because they're afraid of being cheated? If overeating is a national security issue, pretty much anything can be. Still, Yoo makes some good points:
The Senate is not officially in adjournment (they have held "pro forma" meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional "recess." Rather, Obama is claiming the right to decide whether a session of Congress is in fact a "real" one based, I suppose, on whether he sees any business going on.
This, in my view, is not up to the president, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers. The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.
Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama's approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).
He kinda ruins it with that gratuitous swipe at the end, however. Such blatant partisanship makes it difficult to persuade people by pointing out that "even John Yoo thinks the president has gone too far this time." To be fair (if that's the right word), Yoo did have the courage of his convictions in defending Obama's authority to go to war in Libya without congressional authorization, saying Obama reached "the right result" based on "the wrong reasons"—i.e., he should simply have said "because I'm president, that's why" instead of embarrassing himself with silly interpretations of the War Powers Act.