Capitol Words a project of the Sunlight Foundation

Sen. Roger Wicker

Mr. President, I rise because I am deeply concerned about President Obama's unconstitutional overstep of executive authority in the ostensible appointment of Richard Cordray as the Director of the Consumer Financial Protection Bureau, the CFPB, and three new members of the National Labor Relations Board. These unilateral, nonrecess appointments are a blatant abuse of power, one that threatens the very legitimacy of the confirmation process and essentially undermines Congress's critical responsibility to restrain the excesses of the executive branch.

On January 4, mere weeks after this body had rejected Mr. Cordray's nomination, the President went ahead with his own agenda, disregarding our decision and the fact that the Senate was in pro forma session. Days later, unbelievably, the Obama Justice Department's Office of Legal Counsel defended the move, essentially saying that pro forma sessions do not matter anymore; that the President can determine whether the Senate is in recess.

Reversing years of precedent, the administration is asserting that the executive branch now has the authority to decide whether the legislative branch is or is not in session. This presumptuous action by the President goes far beyond the limited powers he is granted by our Constitution. It is an affront to the democratic checks and balances established by our Founders, and it constitutes a gross violation of precedents set by those who have come before us.

The courts surely will have a say in what the President has done, amounting to an expensive, unnecessary move for pure political reasoning. It was only a matter of days before business groups filed a legal challenge against the President's appointments to the NLRB.

To be sure, the President has the right to make recess appointments. This much is unquestioned and is clearly set forth in article II, section 2 of the Constitution, which states the President can ``fill up all vacancies that may happen during the recess of the Senate.''

But the power he has to execute this right nevertheless hinges on a condition that all parties have acknowledged: The Senate must be in recess. As it states in article I, section 5, clause 4 of the Constitution:

Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than 3 days.

The House of Representatives had not formally given our Chamber that consent when the President made his appointments. Moreover, Senators had agreed by unanimous consent to remain in pro forma session.

What the President has done triggers a dangerous new precedent. With this overstep, those in the Obama administration have put their political agenda above the Constitution and above the founding principles that established our government's separation of powers. This is no trifling matter.

Equally troubling is this power grab could inspire further overreach, setting an unconstitutional model for future administrations. It stands to reason that if the President's judgment, not Congress's, dictates when the Senate is in recess, then what would stop him from making an appointment whenever he chooses?

Michael McConnell, a distinguished former Federal judge and director of the Constitutional Law Center at Stanford Law School, recently suggested in the Wall Street Journal that the President could, for example, make an appointment overnight or during a lunch break. The parameters of what recess means would be subject to his discretion and his discretion alone.

In 2007, majority leader Harry Reid kept the Senate in pro forma session to block nominations by President Bush. He said then that recess appointments are ``an end run around the Senate and the Constitution.'' The majority leader's position then was that pro forma sessions may be used to prevent recess appointments. The Democratic leadership was correct on the law then and they ought to be outraged now over President Obama's disregard of precedent and of the Constitution.

Instead, the Democratic leader, who should be protecting the institution that he currently has stewardship of, as well as protecting our Constitution, last week defended the President's appointments on the national news as ``a good move.''

The Constitution does not change based on which party occupies the White House. The same rules should apply no matter who holds office. America was not built upon nor did it rise to greatness because of a single branch of government. Our democracy sits on three separate pillars, and the decisions of the legislative branch are not merely a hurdle for the President to run around.

The Constitution endowed the Senate with exclusive authority to give advice and consent on the executive branch and official nominations. Senators upheld their role to advise when we rejected Mr. Cordray's nomination. Many of us made our reasons for the disapproval well known.

Last year, 44 Republican Senators sent a letter to the President stating that the Consumer Financial Protection Bureau established by the Dodd-Frank Act was in desperate need of reform before a Director could be appointed. This has nothing to do with Mr. Cordray as an individual, but it has everything to do with creating a flawed agency--an extremely powerful one at that. We pointed out our concerns about how unaccountable this Bureau will be to the American people. We raised a red flag about the extraordinary power it gives to unelected government bureaucrats, particularly the Bureau's Director. It is clear that our advice did not fit with the White House's agenda.

This happens in a functioning democracy, and this should be honored. The President has decided not to honor the will of the Senate. He has tried to make an unauthorized appointment that the Members of this body have rejected. In doing so, in circumventing the decisions of elected public servants, his Executive order ultimately diminishes the voice of the American people.

In recent months, the President has made it obvious that he wants to rail against a do-nothing Congress. Perhaps it is part of his reelection strategy. Yet, instead of working with Congress to make needed reforms, he fuels an already polarized environment with this move on recess appointments.

I say this with all sincerity to the President and to my colleagues on the other side of the aisle: There is a time for spin and there is a time to make political points, but politics and theater ought to stop short of trampling on our Constitution.

Like each of you, I made an oath to support and defend the Constitution when I took this office. I would not be upholding this pledge if I did not speak out now about what the President has done. Preserving the constitutional sanctity of the decisions of the Senate and the role it serves is one way we support and defend our founding document and the democratic ideals of those who created it.

The chair of the Banking Committee has scheduled a hearing on Tuesday, supposedly to hear testimony from Mr. Cordray on his plans for the Consumer Finance Protection Board. Let me be explicitly clear. Richard Cordray is not the duly constituted Director of the CFPB. His purported recess appointment does not comply with the Constitution and is, in fact, a nullity. I will not provide the administration with an appearance of legitimacy in this action, and I will therefore not be in attendance at next Tuesday's hearing. This may seem to be a small step, but I hope it is the first of what will become a debate in this Senate by both parties about the constitutional system of checks and balances. This matter will also go to the courts, and I pray that somewhere in the process the sanctity of our Constitution will be upheld.

I approach this matter regretfully and soberly but with apprehension about what the Obama administration is trying to do to our 225-year-old Constitution. I call upon Members of both parties in this Senate to rise in solemn defense of this institution and the constitutional principle of the separation of power.

I yield the floor.