The Nullification Chronicles: At Last Obama Strikes Back

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Last month I mentioned that the refusal of Senate Republicans to allow a vote on Richard Cordray's nomination to head the new Consumer Financial Protection Bureau amounted to modern "nullification." As a reminder:

- The CFPB is the post-financial scandal regulatory agency whose inspiration is often credited to Elizabeth Warren;

- Obama shied from naming the "controversial" Warren to run it, which in turn has freed her to challenge Scott Brown this fall for the Senate seat once held by Teddy Kennedy in Massachusetts;

- Republicans have made clear that they have nothing against Cordray, the former attorney general of Ohio, himself as a nominee. They just don't think the agency should be allowed to function, and by preventing a vote on his nomination they can essentially nullify the law that created it. That is because the law's provisions don't come fully into effect until a permanent CFPB director is in place.

Thumbnail image for cordrayjpg-80a68266951d54c6_large.jpgHaving hesitated through much of last year to call out Senate Republicans on their historically unprecedented reliance on the filibuster, or the nullification strategy being applied at the CPFB and also the National Labor Relations Board (and in a different way, at the Centers for Medicare and Medicaid Services), President Obama has now used the main tool available to him. He has given Cordray a recess appointment to his CFPB role.


As James Warren explains about the merits of Cordray's choice and Brad Plumer about the procedural issues, Obama is using the powers available to a president, in the face of minority "nullification," to operate the government and also to make his political case. If Scott Brown in Massachusetts and Republican candidates nationwide want to argue that the (modest) financial reforms enacted after the 2008 meltdown should be repealed -- fine, let them make that case on the stump this year. If they prevail, they can overturn this law and replace it with what they would like. But until and unless that happens, the CFPB is a legimately enacted organ of government and should be allowed to function. It is nice to see Obama responding to the realities of today's divided government and clarifying, for both sides, the choices that voters will make this year.

UPDATE. Obama has followed the Cordray news with three more recess appointments, all for members of the National Labor Relations Board. This too was an anti-nullification move, for in refusing to consider any NLRB nominations the Republicans were intentionally denying it a quorum for operations.

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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

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