In a National Review
Online essay published yesterday (and noted by
Mike Riggs this morning), Berkeley law professor John Yoo
criticizes President Obama’s “recess”
appointment of Richard Cordray to head the Consumer Financial
Protection Bureau. This is not the first time that Yoo, who as a
Justice Department attorney during the Bush administration became

notorious for pushing executive power to
alarming extremes, has urged President Obama to respect
constitutional limits on his authority. In January 2009, before
Obama had even taken office, Yoo warned
him against the temptation to sneak “a new Kyoto climate accord” or
other international treaties through Congress without the
requisite two-thirds vote by the Senate. Lest you think that Yoo
worries about presidential presumption only when the president is a
Democrat, he opens his NRO piece by conceding that he
is “often” a “zealous advocate of executive power…when it comes
to national security issues.” The implication is that the
president’s powers ebb when he is not dealing with such issues. Yet
given how elastic the concept has become, it would not be hard for
Obama to offer a national security rationale for efforts to
alleviate global warming or protect consumers of financial services
from fraud. How can the nation be truly secure, after all, if the
world is in turmoil because of catatstrophic climate change or if
Americans stop borrowing money because they’re afraid of being
cheated? If overeating
is a national security issue, pretty much anything can
be. Still, Yoo makes some good points:

The Senate is not officially in adjournment (they have held “pro
forma” meetings, where little to no business occurs, to prevent
Obama from making exactly such appointments). So there is no
question whether the adjournment has become a constitutional
“recess.” Rather, Obama is claiming the right to decide whether a
session of Congress is in fact a “real” one based, I suppose, on
whether he sees any business going on.

This, in my view, is not up to the president, but the Senate. It
is up to the Senate to decide when it is in session or not, and
whether it feels like conducting any real business or just having
senators sitting around on the floor reading the papers. The
president cannot decide the legitimacy of the activities of the
Senate any more than he could for the other branches, and vice
versa.

Is the president going to have the authority to decide if the
Supreme Court has deliberated too little on a case? Does Congress
have the right to decide whether the president has really thought
hard enough about granting a pardon? Under Obama’s approach, he
could make a recess appointment anytime he is
watching C-SPAN and feels that the senators are not working as hard
as he did in the Senate (a fairly low bar).

He kinda ruins it with that gratuitous swipe at the end,
however. Such blatant partisanship makes it difficult to persuade
people by pointing out that “even John Yoo thinks the
president has gone too far this time.” To be fair (if that’s the
right word), Yoo did have the courage of his convictions in

defending Obama’s authority to go to war in Libya without
congressional authorization, saying Obama reached “the right
result” based on “the wrong reasons”—i.e., he should simply have
said “because I’m president, that’s why” instead of embarrassing
himself with silly
interpretations of the War Powers Act.