Constitutional limits on power aren't trivial. They are important. And while I think President Obama was within his rights to use his recess appointment powers this week, I'd highly recommend the essay by Akhil Amar and my colleague Timothy Noah, laying out a truly elegant way that Obama and his allies could put the constitutional questions to rest.
But in this case the constitutional questions are also a distraction from the substantive question, which is whether the federal government will be able to protect average Americans from predatory lenders. The Dodd-Frank law creates a new watchdog agency for precisely that purpose. Republicans have refused to confirm Richard Cordray, Obama's choice to run the agency, because they want to weaken it. That is what this fight is about.
Thankfully, the administration seems to realize this. Obama didn't make these appointments on a Friday night, with a mealy-mouthed e-mail. He did so in the middle of the day on Wednesday -- and announced it, formally, by giving a speech in Ohio that was all about his determination to protect average Americans from financial industry abuse.
Later that day, Gene Sperling, Obama's top economic advisor, appeared on the "Rachel Maddow Show." He appears at about the 2:00 minute mark in the clip you see above. If you listen, you'll notice he focuses on the president's substantive goal (protecting people from abusive lending practices) and how that made the recess appointments necessary. Only later, under further questioning, does he get to the procedural questions -- although I was pleased to see he called out the Republicans for "nullification," since that's precisely what they are doing.
In politics, when one side is making a substantive case and the other is making a procedural one, I tend to think the substantive case wins. In this particular instance, the public will hear a president talking about protecting the middle class and an opposition party talking about protecting the power of the Senate. My money is on the president.
Of course, I can't be sure this decision will prove to be good politics for Obama and the Democrats. I am confident that it will prove to be good policy for the American people.