As Todd Gaziano of the Heritage Foundation explained:
[The recess appointment] power has been interpreted by scores of attorneys general and their designees in the Department of Justice Office of Legal Counsel for over 100 years to require an official,legal Senate recess of at least 10-25 days of duration. (There are a few outlier opinions,never sanctioned by the courts,that suggest a recess of six to seven days might be enough–but never less than that.)
The President’s purported recess appointment of Cordray would render the Senate’s advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong that Senator Mitch McConnell (R-KY) has already denounced. But it fits a pattern of extra-constitutional abuse by the White House that seems more interested in energizing a liberal base than safeguarding the office of the presidency.
As Andrew Grossman of the Heritage Foundation has pointed out, even Obama did not really believe the Senate was in recess. This was a plain act of authoritarianism.
Will Congress act? At first blush,one is tempted to say if they stepped aside for an illegal war,a miniature terrorist plot known as Operation Fast and Furious,the miscarriage of justice in the Black Panthers voter intimidation case,the harassment of Sheriff Joe Arpaio,and numerous other offenses,this ranks pretty far down the list.
But that would overlook the one thing this scandal has that the others do not:this one offended senators’vanity. Senators of both parties relish their reputation as “the world’s greatest deliberative body.”Bob Dole famously joked,“If someone went into the Senate Cloak Room and said,‘Mr. President,’everyone would turn-around.”They all believe they are presidents-in-waiting,with the Senate their temporary fiefdom. They cherish the constitutional role of giving advice and consent —which is why the Democrat-controlled Senate went into pro forma session;to preserve their right to examine Mr. Cordray and the three union extremists.
Obama not only trampled on the traditional order; he took away some senators’privileges. He may have to pay dearly for that. He should have long ago.