As the days wind down to the scheduled weeklong congressional recess to mark Memorial Day, Republicans have a choice to make. Will they merely grumble about President Obama using the break to appoint more radical nominees without Senate confirmation, or will they actually stop him? To date, Obama has made 28 recess appointments. One of them, Donald Berwick, was put in charge of the Centers for Medicare and Medicaid Services, even though he was never scheduled for a Senate confirmation hearing. If Republicans don't act, history could repeat itself next week.
The organized Left and a growing number of House and Senate Democrats are urging Obama to make a recess appointment of Harvard Law School professor Elizabeth Warren to the Consumer Financial Protection Bureau, a bureaucracy created by last year's financial regulatory law. The new CFPB would be given wide-ranging powers to regulate consumer financial products, much as the Federal Reserve Board regulates the banking system. Obama has already circumvented Congress by making Warren an adviser at the Treasury Department, where she has been serving as the de facto head of CFPB. Tuesday, she'll be testifying before the House Oversight Committee in that capacity.
But like Berwick, she has never had a confirmation hearing. Were Warren to go before the Senate, she'd be grilled on a number of issues, including her decision to take $90,000 to testify against some of the same TARP banks she was simultaneously overseeing as an appointed member of the Congressional Oversight Panel.
Republicans have vowed to prevent anyone from taking the top job at CFPB until the agency is reformed. But they haven't unveiled a strategy to prevent an Obama end-run. When Democrats took over Congress in 2007, Senate Majority Leader Harry Reid blocked President Bush from making recess appointments by holding pro forma Senate sessions during congressional breaks, some of which lasted just seconds. Last fall, Senate Minority Leader Mitch McConnell made a deal with Reid to prevent recess appointments while senators were out campaigning.
McConnell should use any leverage he has over Reid to get a similar agreement before the Senate adjourns at the end of this week. Barring that, House Republicans can use a tool provided by the Constitution's Article I, Section 5, which stipulates that, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days. ..." Typically, the House and Senate approve each other's recesses. If the House GOP keeps the Senate from leaving, it can thwart Obama's designs.
Republicans made major gains last year because they promised to stop the Obama agenda dead in its tracks. By blocking further recess appointments, they would show they mean business.
[source]
