Obama Miscalculates on Recess Appointments

President Obama has badly miscalculated the public's reaction to his "recess" appointments of Richard Cordray as director of a new consumer protection agency and appointments to fill three labor board vacancies. The move is blatantly unconstitutional. The Senate is still in session based on Obama's own Justice Department calculations. Additionally, the Clinton White House considered the Senate in session if they met once every three days, which the Senate did. According to John Boehner (R), the Speaker of the House (link):

This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department.  The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our constitution.

The White House disagrees, saying the Senate wasn't really in session. They were not conducting business so they did not really meet.

Jay Carney, the White House press secretary, said White House lawyers were confident Mr. Obama had the authority to make the appointment. “When pro forma sessions are simply used as an attempt to stop the president from making an appointment,” he said, then the president is within his rights to move ahead. (link)

Pro forma sessions are still sessions. The courts will decide whether Obama can make recess appointments any time he likes.

The Republicans refused to grant Obama his appointments because they ideologically oppose the creation of a new consumer protection agency, and they wish to keep Obama from claiming any "victories" in an election year. Obama probably felt that these Republican positions were politically unpopular, and he could weather any political storm by calling up his new-found Theodore Roosevelt-style philosophy of increased regulation of business. Indeed, he may win back some liberals that had lost faith in him. Thus a fight with Congress made sense.

Obama said that he just lost patience with Congress stonewalling him: “I refuse to take ‘no’ for an answer. I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve” (link above). Do not let Obama's words enter your mind. This was a cold political calculation, earning political points by using Congress as the whipping boy. How do we know? The following headline says it all:  "Dem NLRB ‘recess’ appointments rushed, don’t appear on White House nominee list"  (link here).

However, he gravely miscalculated the political fallout from a court decision that goes against him. And that is probable. If the courts rule that Obama's recess appointments are illegal and did usurp Congress' power, not only does he lose the appointments, but he comes off appearing like a frightening authoritarian to the moderate voters.

Since Congress was doing a great job of being unpopular without any help from Obama, this fight can only damage Obama in the polls. It is a miscalculation similar to Franklin Roosevelt's court packing bill of 1937. During the Great Depression the American people recoiled from the idea of an imperial White House, able to rule without checks from the other branches. They will react similarly now.

January 25, 2013 and July 17, 2013 update:
I was wrong on the public's reaction but correct on the appointments' unconstitutionality. See Obama recess appointments unconstitutional here. A third district appeals court overturned Obama's appointment here. This court looked at the history and Founders' intentions for recess appointments, and concluded that recess appointments may be made only when Congress adjourns for a long time. Next up, Supreme Court. To be continued...
June 26, 2014 update:
In a unanimous decision the Supreme Court viewed the recess appointments as unconstitutional. While the ruling was not as strong as the lower court ruling against recess appointments, the message was clear.