White House Move Points to More Overregulation

With the start of a new year, the White House is wasting no time setting the stage for more of the same regulatory overreach that has bedeviled employers and stifled job creation since President Obama took office.

On January 4, the president announced his decision to issue a so-called "recess appointment" to install Richard Cordray to lead the controversial new Consumer Financial Protection Bureau (CFPB). President Obama used the same procedure to appoint three new members to oversee the National Labor Relations Board (NLRB).

There is one major problem with this round of recess appointments: Congress is not actually in recess.

The recess appointment authority granted to presidents under the Constitution and established by precedent is intended to allow the chief executive to fill important government vacancies while Congress is out of session for extended periods of time. Until the beginning of the 20th century, Congress was only in session for less than half a year, on average, making the ability to issue recess appointments vital.

Presidents have taken advantage of the process in recent years to circumvent the legislative process and appoint individuals who face too much opposition to ever be approved by the standard nominating procedure in the Senate. However, President Obama's actions are radical even by this standard.

Decades of precedent establish that a recess of 10 to 25 days is customary to trigger the recess appointment clause. During the current break before the second session of the 112th Congress, the House and Senate have convened every three days for pro forma sessions.

President Obama's defiance of decades of legislative precedent is troubling enough, but using recess appointments for these particular offices is especially disturbing. The NLRB demonstrated its capacity to destroy jobs in 2011 when it brought a lawsuit to prevent Boeing from opening a new facility in South Carolina that would create 1000 jobs -- all because it deemed the state's right-to-work law insufficiently deferential to labor unions. Furthermore, two of the three NLRB recess appointments installed individuals who were first nominated on December 17, providing no opportunity for congressional hearings. Stacking the five-member NLRB board even further with unvetted, liberal members guarantees a continuation of its anti-jobs agenda.

Likewise, the Consumer Financial Protection Bureau poses threats to our still struggling economy. Conservatives have opposed this new bureaucracy since its creation by the flawed Dodd-Frank financial regulation bill. One of the biggest concerns is that the sweeping, insufficiently defined authority of the agency rests solely with its director. As Senate Banking Committee member Richard Shelby (R -- Ala.) explained, new CFPB director Cordray "will impact whether Americans can buy a home, a car, or even basic household goods" because he has the authority to "single-handedly determine the financial products consumers can buy, as well as which consumers have access to credit and which do not." Senate Republicans are right to oppose granting this much power to an unaccountable director and agency.

The president claims that he wants to work with Congress to solve the nation's challenges. However, this blatant and unprecedented action represents a dangerous violation of the legislative process and a worrisome signal that the White House will continue its overreaching regulatory agenda in 2012.