Editor’s Note: This column is reprinted with permission of
the Washington Examiner. Click
here to read it at that site.

“I refuse to take ‘no’ for an answer!” President Obama blared
last week at a campaign rally at a high-school gym in Ohio.

Every day that the Senate refused to confirm Richard Cordray,
his nominee for the new “consumer watchdog” agency created by the
Dodd-Frank financial regulation bill, was another “when millions of
Americans were left unprotected.”

So Obama, in a flagrantly unconstitutional gambit, invoked the
Recess Appointments Clause to install Cordray, Senate confirmation
be damned.

Article II, section 2 of the Constitution provides an exception
to the general rule of Senate confirmation, giving the president
the power “to fill up all vacancies that may happen during the
recess of the Senate,” by granting temporary commissions.

Obama isn’t the first president to invoke that exception where
it doesn’t apply, ramming through nominees that the Senate refuses
to confirm. But he is the first to do it when the Senate is
actually in session.

Of course, the administration says that’s not so: “the Senate is
functionally in recess,” according to Obama’s White House Counsel.
The “decider” will decide whether the Senate’s in session, thank
you very much.

The “pro forma” sessions where a lone senator “gavels in,”
adopted by then-Senate Majority Leader Harry Reid in 2007 to stymie
President George W. Bush’s abuse of the recess appointments power,
are “a procedural trick,” the White House insists. (Who knew
“President Autopen” was such a stickler for formalities?)

But, as law professor Michael Rappaport notes, the Framers
“believed it was dangerous for one person to have complete control
over appointments.” The Recess Appointments Clause was, “Federalist
67” explains, merely an “auxiliary method” adopted because “it
would have been improper to oblige this body to be continually in
session.”

That stopgap measure met the needs of an era of horseback
travel, part-time Congresses, and recesses lasting between six and
nine months. It wasn’t supposed to let the president do regular
end-runs around the requirement of Senate confirmation.

If Obama’s gambit succeeds, however, it threatens to become the
exception that swallows the rule.

Living in Washington, you learn to stomach great gouts of
hypocrisy; in this case, though, there’s enough to make you gag.
It’s a little much to hear advocates of unrestrained executive
power like Bush administration vets John Yoo and David Addington
decry the Cordray recess appointment.

“It’s flabbergasting and, to be honest, a little chilling,” said
Addington, who in 2004 mused that “We’re one bomb away from getting
rid of that obnoxious [FISA] court” restricting the president’s
surveillance powers.

But the worst hypocrisy here is Obama’s. “I’ve studied the
Constitution as a student, I’ve taught it as a teacher,” he piously
intoned in 2009: “I know that we must never, ever, turn our back on
its enduring principles for expedience’s sake.”

Yet Bush never fought a war without congressional authorization
— as Obama did in Libya. Nor did Bush ever publicly claim the
power to assassinate American citizens via drone strike, far from
any battlefield. (The memo explaining Obama’s legal rationale for
that move is classified — he could tell you, but then he’d have to
kill you.)