Unfortunately, Kennedy is not the swing vote on campaign finance. He believes almost all campaign finance regulation is unconstitutional, and has been saying such in dissents for decades. (For example, he believes any direct contribution limits are unconstitutional.) He is a “free speech” absolutist, and often signs onto opinions Scalia and Thomas write.

Roberts is the “swing vote” on campaign finance (if one even exists, which I doubt). And he isn’t about to overturn Citizens United.

However, the disent in the Montana case is absolutely delicious. Not because he dissented, but because he spends page after page beating the logic and reasoning of Citizens United into the ground (after which only reluctantly concluding that the opinion controls the outcome of this case). Believe it or not, he even cites the Shock Doctrine. And this is a guy appointed by a Republican governor.

I think a President Romney would move to abolish the CFPB (or at least ensure his appointee was an anti-regulatory zealot). I doubt Romney would appoint Cordray. I also doubt that Cordray would block any regulation that Warren would have wanted.

I think Warren would have been a great CFPB head. But I also think she will be a great Senator from Massachusetts. She would have more power in the former position, but only for 1-2 years (whereas the latter position allows potentially decades of influence and potentially keeping control of the Senate). If she results in us keeping the Senate, Supereme Court appointments/lower court appointments/any reconciliation bill could hang in the balance (the latter depending on who wins the Presidency). In fact, in the unlikely scenario where Obama loses but we keep the Senate due to her win over Scott Brown, she could single-handedly block the crippling of the CFPB in a reconciliation bill.

I agree; it is unlikely that Cordray will be worse than Geithner. (Which is why I fail to see why the market would go up due to the change from Geithner to Cordray).

There are still plenty of incentives to seek normal confirmation. Recess appointments only last 1-2 years (depending on the timing of the appointment), while confirmed positions often last much longer (frequently well past the end of the President’s term).

Furthermore, judges are appointed for life. So recess appointments almost useless for judges. And the Senate can retaliate by refusing to confirm judges if the President abuses his recess appointment power.

Or, the Senate can just decide not to go on vacation.

All this move does is give the President more leverage during negotiations with the Senate. Both sides still have incentives to do things the normal way (the President, to get longer appointment and judges; the Senate, to have the ability to go on vacation with a promise that the President won’t recess appoint anyone not in a negotiated agreement). Both sides can take action if they feel the other side is being unreasonable (as opposed to before, where a hostile Senate could cripple government at no inconvenience or cost to that Senate).

Are you arguing that Cordray would be a “weaker sheriff” than Geithner?

Generally though, having appointments in place helps Democrats more than Republicans. After all, if an agency such as the current NLRB) is powerless (due to the lack of a quorum of 3 members), labor law effectively can’t be enforced. Employers can run roughshod over unions.

If Democrats block Republicans from approving their nominees, the result isn’t all that different than if they don’t do so. Labor law isn’t effectively enforced, because there are no appointees (or because the Republican appointees refuse to do so).

On the other hand, if Republicans block Democrats, that changes the outcome substantially, because now Democrats can’t issue new regulations that otherwise would have been issued.

In generals, the partison favor of government action is hurt much more by total paralysis than the party of smaller government. (This is also true in a political sense — appointment deadlock allows the party of smaller government to break government, and then say “see? Government does not work. Repeal it all.”)

This is not strictly true — there are some instances where blocking Republican regulators would substantially change the otherwise-status-quo. But on balance, a more robust executive recess appointment power helps progressives more than it helps conservatives.

As I said, the funding of the CFPB is not conditioned on the wishes of the Fed. They are guaranteed funding by statute. Every single Fed employee could be an arch Ayn-Rand anti-regulatory zealot, and it would not matter, because they can’t reduce the funding below the guaranteed statutory amount by a single dime.

The Fed isn’t even the one that writes the check. The OMB (or whoever manages the accounts in the White House) simply lowers the Fed’s funding by X, and increases the CFPB’s funding by X (where X is defined in the statute).

You are arguing that stocks sometimes move with political events. No argument there. But the fact that the correlations sometimes happen does not mean that THIS particular event caused THIS particular movement.

To whatever extent this appointment was not already priced in (as news articles have been speculating about this appointment since at least mid December), on what basis could this action possibly help financial institutions? This action moves the bureau out from under the technical control of Tim Geithner, and to the control of Cordray. Furthermore, it strictly increases the power of the agency. How could this be beneficial to financial institutions? Usually, if people argue that a stock movement has to do with a political event, there is at least some theoretical basis for why the movement has anything to do with the event.

Actually, the courts will ultimately decide what the status of the Senate was, and that is how it should be. I really don’t think it is a radical concept to not automatically defer to the Senate about a question of its own power.

You are simply wrong about the clause being contingent upon the wishes of the Senate. Indirectly, the Senate can make its wish known by not going on vacation. But it cannot claim it is not on vacation when it actually is. Under your reading, the Senate could leave for 2 years and have no pro forma sessions, yet as long as the Senate had a standing order that it was not in recess, no recess appointments can be made. Because according to you, we should defer to the Senate on determining its own status. Good luck to anyone who tries to convince a single judge of that.

As for the Payroll tax, I already said that just because a bill passes at time X does not mean that the Senate is in session at time X. In fact, the payroll tax is a perfect example of that. They did not vote to PASS the payroll tax bill. They voted on an ORDER that would deem the bill passed, only after the House passed it. The Payroll tax bill was a bill that legally passed the Senate at a time when not a single Senator was in the Capitol building or presiding.

If you actually believe what you are saying, please point to the line in the statute that gives the Fed power or influence over anything the bureau does.

In fact, according to your logic, the EPA is just a puppet of the Fed. Because the Fed has the same power over the EPA as it has over the CFPB.

I’m sure you can find plenty of days where the market rallied, on which the FDR administration also issued a regulation. Yet I somehow doubt you would conclude that the regulation was just a wolf in sheep’s clothing, and that FDR was just a corporate puppet.

Obviously, there is more to the market than a single action. The market is probably more concerned with the strait of Hormuz (and Europe) than with the expanded power of the bureau to non-bank institutions.

Though the contortions the anti-Obama folks here have to go through to denounce is are quite hillarious. Here we have Obama, making a bold (and technically unprecedented) move that unambiguously expands the power of an agency to regulate financial products, and what is the reaction here? That the action is bad, because it was an action taken by Obama.

That is not what the Constitution says. Under your interpretation, the recess appointment clause is essentially redundant. Even without the clause, Congress could have always set up procedures in advance to allow the President to temporarily appoint the people he or she wants. (For example, see the vacancies act.) In other words, if the recess appointment clause could be nullified by the Senate, there would be no reason to have such a clause.

On the contrary, the recess appointment is a grant of power to the President that is not conditioned on the wishes of the Senate. The Senate cannot any more decide whether or not it is in recess than it can decide whether the Earth revolves around the Sun. It either is, or it is not. If the Senate wants to block a recess appointment, they can cancel their vacation.

Did you miss the part where I said that the Fed has no power whatsoever over the agency, and cannot stop or affect a single rule (or any other agency action)?

That is indeed consistent with the text of the Constitution. But if we are to read limits into the clause that do not appear in the text, those limits should not nullify the clause.

You are conflating two concepts. For example, I believe the Senate could (by unanimous consent) issue an order to state that a given bill is passed on a future date (i.e. the papers go to the House or to the President), even if the Senate is not convened on that day.

In fact, this is exactly what the Senate did. It did not pass the payroll tax cut extension — it agreed to an order that would deem it passed as soon as it got the papers from the House. (It had to do this because it was a tax bill, which must originate in the House).

But would you actually argue that the Senate was in session at the instant they got the papers from the House (the moment the bill legally passed), even if not a single Senator was in the building at that moment, and the chamber was closed?

The point is that a bill passing at a given moment does not necessarily signify that the Senate is in session at that moment. They are different concepts. In particular, the purpose of the recess appointment clause is to allow the President to appoint people when the Senate was unable to advise and consent. This is impossible under the text of the recess order itself.

Technically, the senate is in recess every night. The Constitution contains no lower limit, and Obama appointed Cordray on a day which no pro forma session was convened. But if we are to read limits into the Contitution, those limits at the very least should allow a President to appoint people during a (say) six-month recess of the Senate, when Senators traveled by horse back to their home states. Yet your interpretation would foreclose that option if the Senate left a single Senator to preside every few days, without the power to approve a single nomination.

Perhaps. But I think my definition is correct, and will be upheld by the courts. Any other definition would mean that the recess appointment clause is only in effect if the Senate wants it to be. Congress could go on a 6 month recess (as was common when the Constitution was ratified), and the Senate could block all recess appointments with a single Senator. That is not what the Constitution says, and it is not what it means.

Progressives should be happy with a robust recess appointment power. If we have a nullified recess appointment power, then any future progressive president will have to have a unified government (House and Senate have to agree on long adjournments) to get appointments through. Otherwise, conservatives can block executive agencies from issuing regulations by simpy not approving anyone for those posts. This means any laws that require executive implementation (i.e. all of them) have to have the approval of not just the Congress that writes the law, but the approval of every house of every subsequent Congress’s. That is certainly a recipe for “small government,” but it is not a recipe for any hope of progressive policy.

If the Senate really disagrees with the President, they can stay in session. At least now, they will be forced to pay a price for obstructionism (rather than getting it for free).

The funny thing about your comment is that it was true… until today. Now that there is a director, the bureau is not within treasury, and does not report to treasury.

Now that there is a director, it is housed in the Fed. But this is only for funding: the bureau is guaranteed 1/8 of the Fed’s funding. The Fed has no power over the bureau; Cordray can basically do what he pleases whether Benanke likes it or not (with a guaranteed funding stream that does not need to be appropriated each year).

The Constitution says that the President can make recess appointments. It does not say that the Senate can pretend to be out of recess when it actually is in recess.

Lots of things are big deals that still won’t be solved. I never said it wasnt a big deal.

And I’m not sure why you think you’ll be throwing away one election cycle (to whatever extent there are a non-negligable number of you). There isn’t going to be a President who prosecutes Bush during your lifetime,or anyone else’s. So you are apparently going to continue these tactics until you finally figure this out.

(I actually agree that will only be one election cycle, since the consequences of the next Republican President will do wonders to focus the mind, even if they are not reversible. But you probably have different reasoning why such time period will be limited to one election cycle.)

Ah, yes. You appear correct that that terminology appeared later. My bad.

Instead, he said that “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems to solve.”

Now that really sounds like someone who is going to prosecute Bush.