You need a recess to make recess appointments

Let's get a few things straight.

First, the Consumer Financial Protection Bureau is a legitimate agency, created under the Dodd-Frank financial reform bill. (Just because it passed under largely party-line votes doesn't negate its legitimacy -- there's no asterisk in the Constitution that says party-line votes don't count.)

Second, Richard Cordray, the man nominated by President Barack Obama to head the agency, is well qualified, a fact acknowledged by Republicans and Democrats alike.

Third, the bureau under Cordray will provide much-needed relief for consumers who are currently at the mercy of large financial corporations.

Fourth, the Republican promise to filibuster Cordray's nomination until Democrats agree to changes in the law -- as I wrote in a Dec. 11 column -- is an unprecedented constitutional affront and a dangerous escalation of Washington's bitter partisanship.  

But Obama's appointment of Cordray using his "recess appointment" powers is an equally dangerous, equally unprecedented act. Why? Well, the Senate is technically not in "recess." Thus, no recess appointments.

During the closing days of the George W. Bush administration, Senate Majority Leader Harry Reid began holding so-called pro forma sessions when the Senate would typically be on vacation. He staged these short sessions -- in which a senator gavels in and gavels out, usually in about 30 seconds -- to deny Bush the chance to make recess appointments.

Back in 2007, Reid called recess appointments of controversial nominees "an end run around the Senate and the Constitution," although they are clearly permitted in the text. In 2008, he said "we don't let [Bush] have recess appointments because they are mischievous." And in 2005, Reid said the recess appointment of John Bolton as U.N. ambassador was an "abuse of power."

On Wednesday, however, Reid said he supported Obama's "recess" appointment, accusing Republicans of -- where have we heard this before? -- trying to make an end run around the law. The urgency of helping consumers justifies the move, Reid implied in a statement.

White House Counsel Kathryn Ruemmler contends the pro forma sessions of the Senate are a gimmick designed to render a constitutional power of the president obsolete. Former Justice Department official Steven Bradbury (who was denied a recess appointment thanks to pro forma sessions organized by Reid) quotes former Attorney General Henry Daugherty saying "to give the word recess a technical and not practical construction is to disregard substance for form."

But whenever I hear somebody appeal to "substance" over "form," in matters of law, I get the sense somebody's trying to put one over on me.

Scholars who support Obama's position say the question turns on the idea that the Senate is in "recess" when it is not organized for business and capable of performing its traditional "advice and consent" function. The Senate resolution calling for pro forma sessions frankly acknowledges that no business will be conducted, and thus the Senate can't advise or consent, so it's practically in recess.

But that's a risky interpretation. What's to stop Obama (or a future president) from saying that partisan gridlock has so crippled the Senate that it's incapable of giving advice and consent in general? Could not that be used as justification to make recess appointments all the time?

By making a recess appointment when there's no recess, Obama has surrendered the moral and constitutional high ground. By failing to object, Reid shows not only intellectual dishonesty but also a shocking willingness to surrender an important prerogative of the legislative branch. And just because it makes good politics -- can you imagine the mileage Democrats could get from a Republican lawsuit asserting the right to block consumer protections? -- doesn't mean it's a good idea.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 387-5276 or ssebelius@ reviewjournal.com.