An ex-professor of constitutional law, President Obama understands an unsettling truth about executive overreach: It’s unconstitutional only if somebody squawks. Sure, the Constitution says the president can’t make an appointment without the Senate’s consent. But if he does, and nobody objects, what’s stopping him?
Now Republicans are objecting to Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau. They’re demonstrating another truth: Everyone’s a strict constructionist when he’s not in power. Still, they’re right. This so-called recess appointment is unconstitutional, because the Senate wasn’t in recess when Obama made it. It was holding pro forma sessions, and, contra the Office of Legal Counsel’s memo, those do count.
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