Even Yale professor says Obama’s recess claim a power grab

Neil Munro White House Correspondent
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Even a Yale Law School professor is questioning President Barack Obama’s claim of a legal justification for unilaterally installing Richard Cordray as head of the new finance-sector regulatory bureau.

Obama’s staff say the appointment was based on advice from White House counsel Kathryn Ruemmler, not from the Department of Justice.

But this reliance on Obama’s in-house lawyer marks a “bitter shift” that is reducing the advisory role of the Justice Department’s confirmed appointees, and increasing the role of Obama’s in-house legal counsel, said Bruce Ackerman, a professor at Yale Law, which conservatives have long decried as a hotbed of partisan legal activists.

This legal shift began under President George W. Bush, but Obama has used “other techniques to propel the same shift of power in his direction,” Ackerman wrote The Wall Street Journal on Wednesday.

To curb that shift, he said, the public needs to debate the legal argument for and against Obama’s claimed ability to unilaterally install appointees when the Senate says it is open for business.

“All thoughtful people, Democrat and Republican alike, should insist that Ms. Ruemmler publish her opinion without delay,” wrote Ackerman.

However, White House spokesman Jay Carney has declined to release or even describe Ruemmler’s legal argument, even though few Democratic politicians or academics have defended the administration’s legal claim.

In a brief interview with NPR, Ruemmler claimed that “the way that the Constitution should be interpreted is not through a formalistic or artificial construction but rather a practical, common-sense approach.”

“There are a lot of appointees who have been languishing” without Senate approval, she told NPR. “These were, you know, folks who were necessary in order to make the agencies be able to function.”

Obama used the same politics-over-law argument when he announced his appointment of Cordray.

“Every day that Richard waited to be confirmed was another day when millions of Americans are left unprotected. … That’s inexcusable.  It’s wrong.  And I refuse to take ‘no’ for an answer,” Obama declared to his high-school audience in Cleveland, Ohio.

The controversy began on Jan. 4 when Obama’s staff claimed that the Senate’s “pro forma” sessions — where few Senators were in town, and very little Senate business was conducted — were the legal equivalent of a formal recess.

The Constitution curbs the president’s power in many ways, for example, by forcing him to win Senate approval for senior appointees. But it also allows the president to quickly appoint people when the Senate is in recess.

Obama used this “pro forma” claim to justify his “recess appointment” of Cordray.

Two days later, Obama escalated the conflict by arguing that his installation of Cordray has, legally, the same effect as a formal Senate approval.

He made this claim when he said that Cordray can exercise the legal authorities that the 2010 law establishing the Consumer Financial Protection Bureau extends only to a Senate-confirmed director.

Only one of 51 Democratic Senators called by The Daily Caller last week agreed with Obama’s claim that the Senate was in recess Jan 3. The sole agreement came from Deleware Sen. Tom Carper.

GOP Senators largely opposed the claim.

On Jan. 6, for example, Sen. Chuck Grassley and seven other GOP Senators sent a letter to the Department of Justice asking for information about the department’s role in Obama’s decision.

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