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Thu Jan 5, 2012, 10:32 AM

The "Party of No Frivolous Lawsuits" plans a frivolous lawsuit against Obama recess appointment

From "The Monkey Cage"--

Is the president playing fair during recess? The Cordray appointment
by Sarah Binder on January 4, 2012 · 16 comments

in Judicial,Legislative Politics

President Obama today will give a recess appointment to Richard Cordray to serve as director of the new Consumer Financial Protection Bureau established under Dodd-Frank. With Senate Republicans vowing to oppose any nominee absent structural reform of the CFPB, a Republican filibuster last month blocked the Senate from securing cloture on Cordray’s nomination. Because recess appointments last until the end of the “next session,” Cordray’s appointment would last until the end of 2013.

Republicans immediately cried foul, with Senate Minority Leader Mitch McConnell arguing that the recess appointment “threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.” Speaker John Boehner called the move a “power grab,” and McConnell warned that the move took the White House into “uncertain legal territory.”

Republican consternation stems from the nature of the intra-session recess during which the president made the appointment. Using a tactic developed by Democrats during the second Bush administration, House and Senate Republicans refused to officially recess between the first and second sessions of the current Congress. Instead, the Senate has scheduled “pro forma” sessions every fourth day. Why every fourth day? Republicans maintain that unless an intra-session recess lasts longer than three days, it is technically not a “recess” and thus the president can’t exercise his Constitutional power to make recess appointments (circumventing Senate confirmation). The source of the “three day” rule turns out to be a Justice Department opinion issued in 1993 during the Clinton administration.

So did the president play unfairly during recess? Is the appointment on tenuous legal ground? Although Republicans will likely challenge the appointment in court, it’s hard for me to see the Cordray appointment as more than an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB. The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation. And the most recent court case on the matter—when Democratic Senator Ted Kennedy challenged the intra-session recess appointment of William Pryor to the 11th Circuit Court of Appeals in 2004—upheld the right of the administration to make a recess appointment on the 7th day of a ten day intrasession recess, noting the Constitutional ambiguity of a “recess.” (The Supreme Court declined to take up the case.) Nor does the longer historical record help us much in evaluating the president’s exercise of the recess appointment power. Intra-session recesses were rare before the 1940s given the structure of the Congressional calendar for much of the Congress’s history. Presidents from both parties have made intra-session recess appointments, and they’ll continue to.


--more--
http://themonkeycage.org/blog/2012/01/04/is-the-president-playing-fair-during-recess-the-cordray-appointment/

38 replies, 9119 views

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Arrow 38 replies Author Time Post
Reply The "Party of No Frivolous Lawsuits" plans a frivolous lawsuit against Obama recess appointment (Original post)
KansDem Jan 2012 OP
SpiralHawk Jan 2012 #1
monmouth Jan 2012 #2
MjolnirTime Jan 2012 #34
AtheistCrusader Jan 2012 #3
bloomington-lib Jan 2012 #23
geardaddy Jan 2012 #4
RC Jan 2012 #5
treestar Jan 2012 #6
pacalo Jan 2012 #7
gratuitous Jan 2012 #10
pacalo Jan 2012 #13
Moostache Jan 2012 #27
The Genealogist Jan 2012 #8
NYC Liberal Jan 2012 #9
deacon Jan 2012 #11
pinto Jan 2012 #12
maddiemom Jan 2012 #14
B Calm Jan 2012 #15
JoePhilly Jan 2012 #16
Bill USA Jan 2012 #26
B Calm Jan 2012 #35
tclambert Jan 2012 #17
penndragon69 Jan 2012 #18
badtoworse Jan 2012 #19
KansDem Jan 2012 #20
Tx4obama Jan 2012 #21
gtar100 Jan 2012 #22
JohnWxy Jan 2012 #24
Bill USA Jan 2012 #25
SleeplessinSoCal Jan 2012 #28
Ecumenist Jan 2012 #29
Botany Jan 2012 #30
stlsaxman Jan 2012 #31
Hubert Flottz Jan 2012 #32
yellowcanine Jan 2012 #33
ProgressiveEconomist Jan 2012 #37
malaise Jan 2012 #36
RBInMaine Jan 2012 #38

Response to KansDem (Original post)

Thu Jan 5, 2012, 10:34 AM

1. No wonder Americans no longer respect Republicons

 

so rank and stanky is their hypocrisy.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 11:33 AM

2. I wonder how Jonathan Turley will interpret this....n/t

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Response to monmouth (Reply #2)

Fri Jan 6, 2012, 10:47 AM

34. Turdley will be anti-Obama as usual.

 

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Response to KansDem (Original post)

Thu Jan 5, 2012, 11:53 AM

3. There's actually a really good fox news article on this.

And the author doesn't tow the line that Obama is a traitor, so he'll probably be unemployed soon.

Actually did his homework on the facts.

http://politics.blogs.foxnews.com/2011/12/31/recess-appointment-gambit

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Response to AtheistCrusader (Reply #3)

Thu Jan 5, 2012, 08:11 PM

23. I agree. Surprisingly informative.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 11:57 AM

4. What a bunch of putzes.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 12:03 PM

5. Why would anyone sane vote for, let alone support anyone the Republican Party has put up for

 

President since 2000?

The Republican Party, the party or NO!, the party that has brought us 2 wars off the books, record debt and deficits through tax cuts and corrupt war mongering, high joblessness though outsourcing our Living wage jobs to reward CEO’s with billions, while doing their best to rip up the safety net programs designed to help those very people made destitute by their party’s actions. The party whose stated mission is to make Obama a one term President, instead of working to repair the damage to our country their Sociopathic political platform has caused?
Why do people vote against their own self interests to elect these greedy multimillionaires that are working to bankrupt the rest of us?

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Response to KansDem (Original post)

Thu Jan 5, 2012, 12:05 PM

6. The pro forma session should be considered a recess anyway

Likely the framers intended that a quorum be there, otherwise there is a "recess."

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Response to KansDem (Original post)

Thu Jan 5, 2012, 12:42 PM

7. The number of recess appointments made by Clinton, Bush, & Obama...

How Often Have Recent Presidents Made Recess Appointments?

President William J. Clinton made 139 recess appointments, 95 to full-time positions.

President George W. Bush made 171 recess appointments, of which 99 were to full-time positions.

As of December 8, 2011, President Barack Obama had made 28 recess appointments, all to full-time
positions.

http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP%2BP%5CW%3B%20P%20%20%0A



...which really makes this paragraph just astounding:

Republicans immediately cried foul, with Senate Minority Leader Mitch McConnell arguing that the recess appointment “threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.” Speaker John Boehner called the move a “power grab,” and McConnell warned that the move took the White House into “uncertain legal territory.”


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Response to pacalo (Reply #7)

Thu Jan 5, 2012, 12:48 PM

10. The only sane response to Yertle's bleat

Is "What 'confirmation process' is the Senate Minority Leader referring to?" The Republicans have set all kinds of records in this Congress for blocking appointments and crippling government agencies for no other reason than that they can. Obama has finally (Finally!) had enough of these temper tantrums that would shame a 5-year-old, and made a couple of appointments.

Another 100 or so appointments, particularly to vacant federal judgeships, and we might start seeing the government get working again. I look forward to the Republicans' explanation for their petulant truculence, considering the few appointments they have allowed to get to a vote have sailed through with huge majorities. Actually, scratch that: I know the Republicans don't have a valid reason for their obstructionism. What I want to see is major media talking heads saying that, explicitly and with names named. These bastards have been gnawing on the structure of the government long enough in their mean, secret way. It's time they were brought out into the light and forced to answer for their actions.

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Response to gratuitous (Reply #10)

Thu Jan 5, 2012, 01:29 PM

13. How could they seriously present this to a court when they could have voiced

the same protests about Bush's 171 recess appointments but didn't?

Let's see what fairy tale will be spun by Fixed News on recess appointments. Hopefully, someone will post a clip.

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Response to pacalo (Reply #13)

Fri Jan 6, 2012, 12:46 AM

27. The BLATANT racism makes me sick...

Not that anyone is or should be surprised by the magnitude of racism that has been hurl at President Obama, but for the love of Christ...Bush makes 171 appointments (an average of 21 per YEAR) and Obama makes 28 in four years - a clip fully 1/3rd that of the Shrub and the man with no eyebrows begins ominously intoning about "power grabs"?

Fuck him right between his botox-stuck eyes!

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Response to KansDem (Original post)

Thu Jan 5, 2012, 12:43 PM

8. If this gets into the court system

My guess is that it will eventually get to the Supreme Court, where it will turn out exactly how the Republicans want it. Then, if the court is still the same makeup next time a Republican president comes in, they will just merrily reverse the ruling.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 12:48 PM

9. This after the John Bolton appointment by Bush.

I wonder if the Republicans were so upset then. (They weren't.)

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Response to KansDem (Original post)

Thu Jan 5, 2012, 12:49 PM

11. Wow. They are playing right into Obama's hands. lol. Good luck with that. Idiots. n/t

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Response to KansDem (Original post)

Thu Jan 5, 2012, 01:24 PM

12. Check out DU's homepage, Pic of the Moment...

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Response to KansDem (Original post)

Thu Jan 5, 2012, 01:39 PM

14. public attention span

Republicans seem to think that the nation has a very short attention span and absolutely no recognition of hypocrisy. However insulting, they seem to be right.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 01:44 PM

15. How many recess appointments did Bush have?

 

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Response to B Calm (Reply #15)

Thu Jan 5, 2012, 02:43 PM

16. Your wish is granted!!

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Response to JoePhilly (Reply #16)

Thu Jan 5, 2012, 08:44 PM

26. GOOD info. You should post on some Corporate Media sites just to stick their noses in it and

emphasize relevant information which, again, they are passing on reporting on.


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Response to JoePhilly (Reply #16)

Sun Jan 8, 2012, 06:59 AM

35. Thank you Joe!!

 

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Response to KansDem (Original post)

Thu Jan 5, 2012, 04:21 PM

17. They're against it if anyone else does it. Anything they do is OK.

Hypocrisy is not only accepted, it's mandatory!

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Response to KansDem (Original post)

Thu Jan 5, 2012, 04:44 PM

18. WAAAAAAAAAAAAA !

 

Happy new year, from the repubLIEcon TERRORISTS !

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Response to KansDem (Original post)

Thu Jan 5, 2012, 04:50 PM

19. The lawsuit is not frivolous

 

There is too much ambiguity about this process and we need an unambiguous definition of what constitutes a recess. Clarity on the matter may force this and future Congresses to act on appointments while they are in session rather than risk allowing a president to act without their involvement.

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Response to badtoworse (Reply #19)

Thu Jan 5, 2012, 05:55 PM

20. You have a point...

Clarity on the matter may force this and future Congresses to act on appointments while they are in session rather than risk allowing a president to act without their involvement.

But "clarity on the matter" is not why Republicans are threatening a lawsuit they can't win. Consider the chart in post no. 16. 97 recess appointments in 5 administrations, a majority of them during Republican administrations.

Republicans are threatening this lawsuit because they are the "Party of No" and hypocrites.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 06:57 PM

21. The Republicans will NOT challenge the appointment in court, BECAUSE

they have publicly admitted that they ARE in recess.
See here: http://www.democraticunderground.com/1002125560

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Response to KansDem (Original post)

Thu Jan 5, 2012, 08:07 PM

22. What a bunch of hypocritical assholes.

What else can be said about these jerks. They treat their constituents like their a bunch of idiots who don't know history. That's got to be so humiliating for Republicans who don't have their heads up their ass (yes, there are a few left).

I hope their hubris is a sign of their own demise.

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Response to KansDem (Original post)

Thu Jan 5, 2012, 08:39 PM

24. Repubugnuts are TOXIC WASTE.

It's getting so I'm finding words fail me when I try to express my revulsion to Repunks.


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Response to KansDem (Original post)

Thu Jan 5, 2012, 08:41 PM

25. MUST PROTECT THOSE LOAN SHARKS AND BANKSTERS WHO CAN 'POLICE THEMSELVES'!



RECOMMENDED!

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Response to KansDem (Original post)

Fri Jan 6, 2012, 02:52 AM

28. Jon Stewart's break down on this is the best thing I've seen covering this.

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Response to KansDem (Original post)

Fri Jan 6, 2012, 03:37 AM

29. WTF?Wait a minute...didn't chimpy mcflightsuit seat a few of his troop using

recess appointments? It's okay for them but not us..wait. what?

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Response to KansDem (Original post)

Fri Jan 6, 2012, 06:15 AM

30. To the Republicans:

Please file a lawsuit to help the bankers and payday lenders in an
election year.

all the best,
President Barack Obama

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Response to KansDem (Original post)

Fri Jan 6, 2012, 07:39 AM

31. kick

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Response to KansDem (Original post)

Fri Jan 6, 2012, 09:29 AM

32. Several more reasons why America is in such sad shape.

Trent Lott
Bill Frist
Mitch McCONnell

And if that Isn't enough...

Nuwtzi Gang-gwench
Pudgy Hastret
BawlBaby Boinger of orange

And I probably should throw up and then throw in...

Dick Armey
Tom DeLaid-off
Mister Can'tor

These kat killing scumbags and scallywags, for the greater good of America, should mainly all focus on, "GetTheF outta here"

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Response to KansDem (Original post)

Fri Jan 6, 2012, 10:38 AM

33. Good luck with that chumps. You don't have standing to sue.

The only person with standing would be a person who contested an adverse decision by the appointee. So they will have to wait for an adverse decision against one of their corporate cronies.

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Response to yellowcanine (Reply #33)

Sun Jan 8, 2012, 08:12 AM

37. YES, only the biggest losers from

impending rulings by Cordray would have the "standing" and the financial damages necessary to sue. But are they daring enough to expose their outrageous consumer fraud in detail as they would have to in any lawsuit?

We had a good discussion of this point in a recent GD thread (at http://www.democraticunderground.com/1002121504 ):

"IMO, the biggest losers from today's recess appointment to the CFPB are payday lenders who charge poor suckers an average of 400 percent interest on typical loans. Right now, the Feds cannot regulate these loan-sharks. Recent research by respected economists (see the Slate.com story at http://www.slate.com/articles/business/the_dismal_science/2009/07/400_percent_apr_is_that_good.single.html ) found that strong disclosure rules would depress the payday loan business by 10 percent. Rules that capped interest rates at, say, 36 percent, would virtually put payday lenders out of business.

IMO, the more daylight that is shone on the payday lending business, the more and more severe will be restrictions imposed on it. Already, Ohio state legislation and the Military Personnel Act have capped payday lenders' APRs at 28 percent and 36 percent, respectively.

Dozens of other states well might follow Ohio's example should the payday lenders' association sue to deligitimize Cordray's appointment. Payday lenders would have to show in court the numerical extent of their losses due to regulation of their storefront loan-sharking. Just imagine the bad press a lawsuit by the payday lenders' association would generate for the Rs. 'Republican obstruction of the CFPB generated $X million in payday lender profits.' 'Republican Senators S and B (I did not choose these initials randomly) received more than $Z in campaign cash from payday lenders.'

Any payday-lender victory in court on the appointment front would IMO be a Pyrrhic one. A payday lenders' suit over the CFPB appointment would be like the roaches themselves turning on the lights in a filthy kitchen! A no-nonsense cleanup would ensue, and the exterminator would be called!"

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Response to KansDem (Original post)

Sun Jan 8, 2012, 07:14 AM

36. Limbaugh and Recess Appointments

http://bluevirginia.us/diary/5712/rush-limbaugh-strongly-supported-recess-appointmentswhen-bush-did-them

<snip>

I love it, now that Democrats are in the White House, making recess appointments is "peeing on the constitution," according to drug-addled bigot and corporate tool Rush Limbaugh (and many others of his ilk). But wait, when Republican'ts controlled the White House, not only were recess appointments the greatest thing since sliced Wonder Bread (Rush's favorite food group, along with Twinkies and other crap that makes you obese?), but anyone who opposed those recess appointments was a "Stalinist." Got that? That's the Republican't Party line these days, apparently, so we might as well get used to spending some energy demolishing it.

The fact is, this current false "outrage" is utter hypocrisy by a party famous for it. It's just like how, when Reagan raised taxes a dozen times as president, while also racking up trillions in debt and growing government by leaps and bounds, it was hunky dorey for Republicans, who have pretty much sainted ol' Ronnie. But when Democrats like Bill Clinton slashed the deficit, or when Democrats like Barack Obama cut taxes for 95% of Americans, they're commie/pinkos/socialists/blahblahblah. Or, when conservatives pushed the individual mandate and "cap and trade" as enhancing personal responsibility and harnessing the power of the free market, that was fine. But the second Democrats start to push those conservative ideas?Oh, then they're EVIL! Sensing a pattern here? Hmmmm...gee, ya think?

delete extras

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Response to KansDem (Original post)

Sun Jan 8, 2012, 08:16 AM

38. They are walking right into Obama's trap. Obama WINS BIGTIME on this ISSUE.

 

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