Pelosi on Obama Nullifying Constitution's Confirmation Mandate: ‘I’m Proud of What the President Did’

Elizabeth Harrington | January 5, 2012 | 2:00pm EST
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House Minority Leader Nancy Pelosi of Calif. (AP Photo/J. Scott Applewhite)

( – House Minority Leader Nancy Pelosi (D-Calif.) says she is “very glad” and “proud” that President Barack Obama appointed a director to the Consumer Financial Protection Bureau (CFPB) and three members of the National Labor Relations Board (NLRB) without putting them through Senate confirmations.

Article 2, Section 2 of the Constitution requires presidential appointees to be confirmed by the Senate before they can take office unless the Senate is in recess or if the appointments are to inferior offices that Congress has legally given the president the power to control. When the Senate is in recess, the president can make temporary appointments that last only until the end of the next session of Congress.

However, the Senate was not in recess on Wednesday.

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At a Capitol press conference on Thursday a reporter asked Pelosi: “Was the Congress in recess yesterday, and are you at all worried that President Obama has set a precedent that may make it easy for a president in the future to circumvent Congress when making appointments?”

Pelosi said: “I’m very proud of the president of the United States and the appointments that he made yesterday.  I’m very glad that he did and it’s important for the American people to know what challenges face him as he tries to provide leadership for the agencies of government, which have been voted on by the Congress, are part of our public policy.”

“I especially want to address the Consumer Protection agency,” she said. “In our Wall Street reform bill, we had the greatest consumer protections in the history of our country.  The Republicans want to block the appointment, not because they don’t think the person is qualified, but because they don’t want that agency to function.  So, I’m proud of what the President did.”

A reporter then followed-up, asking, “The Senate, however, was in a pro forma session yesterday and critics are saying the president was not able to make those recess appointments because Congress was not actually in recess –”

Pelosi said, “Well, let that be the public debate with the Senate.  Fortunately or unfortunately for us we do not have a role in the confirmation process, but we’re glad that the president took the lead, went out there, was bold and made the appointments.”

Although Pelosi did not answer the first question about whether Congress was in session on Wednesday, in further comments about congressional actions on the economy, she said: “Again, we’re here, we’re going back to work. We’ll be in session for as long as it takes but we also would like to have our colleagues come back, have a real session--to your point, they have an appearance of a session so it blocks what the president can do but not a productive session that gets the job done for the American people. We can’t wait. We have work to do. We’re going to work right now. Thank you all very much.”

President Barack Obama shakes hands with Richard Cordray before speaking about the economy, Wednesday, Jan. 4, 2012, at Shaker Heights High School in Shaker Heights, Ohio. In a defiant display of executive power, President Barack Obama on Wednesday will buck GOP opposition and name Cordray as the nation's chief consumer watchdog. Outraged Republican leaders in Congress suggested that courts would determine the appointment was illegal. (AP Photo/Haraz N. Ghanbari)

Article 2, Section 2 of the Constitution states:  “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Though the Constitution does not specify what constitutes a recess, precedent has determined the president does not have the power to make appointments during a recess of less than 10 days.

President Obama appointed Richard Cordray on Wednesday to head the Consumer Financial Protection Bureau. He also appointed Democratic lawyer Richard Griffin, Labor Department official Sharon Block, and Republican lawyer Terence Flynn to the NLRB.

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