McConnell’s concern for ‘precedent’

President Obama, to the delight of progressives everywhere, will appoint Richard Cordray to the Consumer Financial Protection Bureau through a recess appointment. Congressional Republicans are predictably apoplectic.

Here’s a statement issued by Senate Minority Leader Mitch McConnell (R-Ky.), which I’ve decided to annotate:

“Although the Senate is not in recess [1], President Obama, in an unprecedented move [2], has arrogantly circumvented the American people [3] by ‘recess’ appointing Richard Cordray as director of the new CFPB. This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer [4].”

This is probably going to be a pretty important dispute, so let’s take McConnell’s arguments one at a time.

[1] The definition of “recess” has become a little more malleable than it probably should be. McConnell would have us believe pro-forma sessions tie the White House’s hands, but there’s evidence that McConnell doesn’t really believe his own argument. His own spokesperson has conceded that these sessions are “purely political” and aren’t to be taken seriously, and just two weeks ago, McConnell himself seemed to suggest recess appointments are possible during Congress’ winter break. Indeed, the Minority Leader may find it interesting that George W. Bush’s own legal team concluded that the Senate cannot use sham pro-forma sessions to prevent the president from exercising a constitutional power. The non-partisan Congressional Research Service produced a report on this in March and reached a similar conclusion.

[2] This one is largely true, but the argument lacks relevant details. Obama’s recess appointment arguably is unprecedented, but that’s not the president’s fault; it’s McConnell’s. After all, it was the Senate Republican minority that, for the first time in American history, said it would not allow a vote on a qualified nominee solely because the minority does not like the existence of the agency the nominee was selected to lead. Obama is breaking with precedent only because Mitch McConnell is breaking with precedent — if Cordray were given a vote, the way the Senate is supposed to function, the recess appointment wouldn’t be necessary. And if McConnell is concerned with “precedent,” he wouldn’t be using a nullification strategy.

[3] The “American people” are not being circumvented. In reality, the American people elected a Democratic majority to the Senate for the three consecutive election cycles; the American people elected the lawmakers who created the CFPB; and the American people elected President Obama to nominate officials to head the various agencies. The American people support the CFPB and reject McConnell’s obstructionist tactics. The only people “arrogantly circumventing” the “American people” are Senate Republicans.

[4] There’s actually ample precedent for presidents making all kinds of recess appointments that would probably bring tears to McConnell’s eyes. In one instance, Teddy Roosevelt once made recess appointments “during an intersession recess of less than one day.”

McConnell probably isn’t principally concerned about accuracy here, but his argument clearly needs some work.