Today, Barack Obama plans to defy congressional Republicans and give Richard Cordray a recess appointment to head the Consumer Financial Protection Agency. Senate Republicans had made it clear that they had no particular objections to Cordray, but simply were going to filibuster any nominee to head the agency until Obama agreed to partially repeal the law that created the agency. They then followed up with some procedural moves that they claimed made a recess appointment impossible but that administration lawyers say lets them do it.
It’s worth noting that the basic GOP method here, if successful, could have wide-ranging impacts on American regulatory policy. There are presumably any number of existing federal statutes that Congressional Republicans would favor changing in various ways. By the Cordray standard, Senate Republicans could filibuster any effort to appoint a head of the Environmental Protection Agency unless the president agrees to change the Clean Air and Clean Water Acts. Or they could filibuster any effort to appoint a Secretary of Labor unless the president agrees to change the Fair Labor Standards Act. In part because of the GOP’s increasingly aggressive use of confirmation power, the Obama administration has had an unusually low level of cabinet turnover. But if he gets re-elected that presumably won’t last forever. And even if he’s not re-elected there will be some future Democratic President who presumably wants to appoint people to supervise various regulatory agencies.