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Focus on the Family uses arguments from ‘torture memos’ author to blast Obama recess appointments

CitizenLink, the Focus on the Family Christian news site based in Colorado Springs, Colo., weighed in Thursday on the latest political controversy winging out of Washington, D.C. The site reported that, in using “recess appointments” to fill three seats on the National Labor Relations Board and to place Richard Cordray as director of the Consumer Financial Protection Bureau, President Obama had “stepped over a line and into history.” The CitizenLink reporter turned to George W. Bush justice department attorney John Yoo, the author of the notorious 2002 War on Terror “torture memos,” to support the argument that the nation was witnessing a major unconstitutional power grab.

“Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case?” CitizenLink quotes Yoo writing on the matter. “Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).”

CitizenLink identifies Yoo only as “a law professor at the University of California at Berkley, who is well known in legal circles for advocating executive power.”

Yoo is perhaps one of the most controversial figures in U.S. legal history. His torture memos were eventually disavowed by the Bush justice department. The Office of Legal Counsel where Yoo worked repudiated them as unsound and dangerous. After a five year inquiry, the department’s Office of Professional Responsibility reported that Yoo had “committed intentional professional misconduct when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques…” During the inquiry, Yoo told investigators the “president… had the constitutional power to order a village to be ‘massacred.’” Three years ago, Spanish Judge Baltasar Garzón Real launched an investigation of Yoo for war crimes.

By contrast, the Obama appointments this week can be seen in context less as any kind of historic overstep and more as just another strategic move in a Capitol Hill chess game.

The appointments come after three years of deep congressional dysfunction and after the president in recent months vowed to act where he can to use executive orders to bypass congressional obstructionism.

“We’re not going to wait for Congress… Where they won’t act, I will, through a series of executive orders… We’re going to look every day to see what we can do without Congress,” he told a crowd in October gathered on the downtown Denver Auraria Campus.

The argument against the appointments is that the Senate was not in fact in recess when Obama made them. The White House says the Senate was “in session” in name only, opening up for do-nothing 30 second meetings in order mainly to keep the president from appointing Cordray to head the two-year-old leaderless Consumer Financial Protection Bureau (CPFB), which was created by Congress over the objection of bank lobbyists to protect credit card holders, for example, from gouging interest rates and fees.

Republican senators have for months blocked confirmation of Cordray, who is a Republican and a former attorney general of Ohio. The senators say they do not object to Cordray but only to how the CPFB is organized. Its financing, for example, comes from the Federal Reserve, which means Congress can’t influence the agency by controlling its budget. Yet, in two years, none of the senators have introduced legislation to rework the CPFB, leading most observers to conclude that, on one hand, the Republicans, acting on behalf of the banks, don’t want the bureau to ever functionally exert its regulatory mission and, on the other, don’t want to go on record with that stand in an election year where the commitment of lawmakers to represent the interests of their constituents instead of the interests of corporations is being seriously called into question.

Jon Stewart on Thursday laid out the controversy in typical succinct and damning fashion:

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