President Barack Obama has created a constitutional showdown by trying to announce recess appointments when the Senate is not in recess, Iowa Sen. Chuck Grassley told The Daily Caller.
“It would be a compromise of Senate confirmation power just by precedent if he gets away with with it,” Grassley said in a Jan. 11 interview. “That’s why we can’t let him get away with it.”
Grassley angrily challenged the legality of Obama’s appointments, saying, “Are we a government based on the rule of law? Is the Constitution supposed to be followed or is it supposed to be ignored?”
But, Grassley cautioned, the GOP would have to proceed carefully, and will likely have to wait for a judicial intervention.
Obama pushed Richard Corday’s appointment — despite the legal problems and congressional opposition — because he thinks it will help his 2012 campaign, Grassley said. “He’s desperate because he’s in a tough race for re-election, and he figures this [appointment controversy] will blow over, and it is part of his campaign to run against Congress.”
However, Grassley said, the controversy won’t go away.
“At every one of my town meetings, the public has been outraged about the president’s action on the recess appointments. … [They asked,] ‘Who does he think he is? Is he going to be a dictator? Is he going to follow the Constitution?'” (RELATED: Even Yale professor says Obama’s recess claim a power grab)
Asked what the GOP caucus would do next, Grassley declined to comment.
“I’m not going to make any statement on that until I talk to our leaders … we’re going to have to be pretty united.”
“We’re going to have to think it through, but I’m hoping that someone in the private sector will take a case to court, because that’s what we’re going to have to do to get his wings clipped.”
Legals experts say senators may not have standing to sue. Only business groups hit by the appointee’s regulations can bring this issue to court, said Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute.
Republican leader Sen. Mitch McConnell has already taken a very strong position on the issue, Grassley said.
No Democratic senators have opposed Obama’s move, but only one Democratic senator — Delaware’s Tom Carper — has said the Senate was in recess when Obama announced the move.
The Constitution forces the president to win Senate approval for senior appointees to his agencies, but it allows the president to quickly appoint people when the Senate is in recess.
The controversy began on Jan. 4 when Obama’s staff said that the Senate’s ”pro-forma” sessions — where few senators were in town, and very little Senate business is conducted — were legally equivalent to a formal recess.
Obama used this “pro-forma” session to justify a recess appointment of Cordray as head of the new Consumer Protection Financial Bureau. Shortly after, he also installed three people on the National Labor Relations Board.
Obama’s claim “is ridiculous,” said Grassley. “If the Congress recesses [for the two parties’ weekly caucus lunches] from 12.15 to 2.3o on Tuesday, can he do a recess appointment?”
Two days after the appointment, Obama escalated the controversy by arguing that his installation of Cordray is legally the same as formal Senate approval of Cordray. (RELATED: White House taunts GOP opponents over recess appointments)
He stated this when he said that Cordray can exercise the legal authorities granted only to a director confirmed by the Senate.
Section 1066 of the 2010 law that created the bureau says that many of the bureau’s new powers are held by the secretary of the Treasury until the director of the bureau is confirmed by the Senate. Those extra powers include the authority to write regulations for non-bank firms, such as pay-day lenders. (RELATED: Cordray’s power stymied by 2010 law that created his new agency)
“The law is clear that he can’t issue regulations without a head of it being confirmed by the Senate,” said Grassley. That lack of authority will ensure that Cordray’s “rules and regulations will be a nullity” once they’re reviewed by judges, he said.
Obama’s attempted appointments, said Grassley, force senators and citizens to defend the rule of law against a White House power grab.
“Are you in favor of the rule of law or the law of the jungle? Right now, we’re in the rule of the jungle.”