Rule 22

Last week Richard Cordray received what the White House called a “recess” appointment to serve as director of the new Consumer Financial Protection Bureau.  (side note: during break I was surprised to learn that a family member was his roommate at Michigan State).  This was a controversial maneuver because the Senate was holding pro-forma sessions (quickly gaveling in and out) every fourth day after its normal recess date in the hopes that, because the Senate was technically “in session”, Obama would be blocked from appointing making executive appointments.  Of course Democrats used this procedure (successfully) during Bush’s second term.  Naturally, House and Senate Republicans were outraged upon hearing of Cordray’s appointment, which probably looked something like this.

Sarah Binder addressed this topic asking whether the Cordray appointment was “fair” [by which I think she meant “Constitutional”].  Her overall conclusion is that, while this is somewhat uncharted territory from a legal vantage point, there are no firm precedents against its use.  She notes that the Constitution is silent on recess appointments in general and that the Supreme Court declined to address a similar case in 2004.  Binder (aptly in my opinion) describes the White House’s maneuvering for what it is:

an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the [Consumer Financial Protection Bureau].

Binder’s claim is in contrast to the public outcry from Boehner, McConnell and company that Obama’s recess appointment represents an unnecessary “power grab.”  But despite the constitutional implications, the Cordray appointment raises a more significant question in my view: How and why Congress evolves in the face of executive encroachment?

In “Congress, the Constitution, and the Crisis of Legitimation,” Larry Dodd—my dissertation advisor and mentor—addressed this topic, arguing that Congress’s “institutional will” vis-à-vis the presidency is conditioned by a range of factors including the political external environment, how lawmakers conceive of their congressional service and long-term cycles of Congressional change.  Of Congress’s lacking institutional will in the 1960s and 1970s, Dodd writes that

In spreading organizational power so widely that Congress cannot act, members undermine not only the legitimacy of the institution but also the popular belief in the viability of Congressional policymaking (p. 413).

Now it’s important to remember that when Dodd was writing (1981), Congress was still highly decentralized despite recent reforms (due in large part to it’s heterogeneous parties and seniority norm).  In the previous decades Congress was marked by significant failings and institutional challenges: in particular the inability to enact civil rights legislation in the 1950s and 60s and Nixon’s impoundment of appropriated funds in the 1970s.

With the Cordray appointment what we see is the opposite problem that Dodd noted: careerist politicians operating in an ideologically polarized and hierarchal environment where party loyalty is critical for a member’s reelection prospects.   This cyclical pattern is something Dodd has also written about in a series of essays—see “Congress and the Question for Power” (1977) and “The Cycles of Legislative Change” (1986).  The gist of the argument is that legislative reforms are driven by the complex interaction of lawmakers’ career goals and the movement of previous generations of reformers through a hierarchical career trajectory.  When junior members occupy Congress during periods of institutional normalcy, power will be decentralized to foster the individual members’ reelection goals.  Over time, however, Congress becomes too rigid and unable to act; as a result the executive branch usurps some area of congressional authority.  The important point is that, like the Cordray appointment and Binder’s point, the executive branch does not usurp congressional prerogatives for the sake of power alone (merely to fill an important void left by Congressional inaction).  According to Dodd’s theory of Congressional cycles, over time this state of affairs leads to greater public dissatisfaction with Congress and an influx of new members tasked with re-centralizing power.  These new members, operating in an environment of Congressional upheaval, are less tied to the existing structure and, therefore, receptive to enacting reforms.

Anyway the point if this post is that (1) the Cordray appointment is due more to Congress’s institutional failings rather than an intentional “power grab” by the president and (2) that previous authors have written about these kinds of developments noting a particular pattern of change over time.

Finally, I would be remiss if I didn’t point out that a number of Dodd’s writings on this topic—including those cited previously—were published a month ago in a single volume.  I encourage anyone interested in Congressional history and institutional development to read “Thinking About Congress: Essays on Congressional Change.”  The reviews of this book—by Sarah Binder, Joseph Cooper, Theodore Lowi, Sean Theriault and Rodney Hero—are quite praiseworthy and impressive.