In a revelation that is quite shocking to anyone who knows anything about the 100-plus years of precedent on the recess appointment power or the separation of powers, the White House today announced that the President planned on making a purported recess appointment of Richard Cordray to the new Consumer Financial Protection Bureau. This is a position the Senate has refused to confirm Cordray for, and it is also of note that the White House announced this momentous decision in an official tweet from communications director Dan Pfeiffer.
Heritage’s Diane Katz has explained why that position should remain unfilled until the agency’s powers are modified, but the alleged recess appointment is outrageous no matter what position it would supposedly fill. What is shocking is that the Senate is not in a recess that would allow a recess appointment, and it can’t be under the Constitution, even if many Senators are not in D.C.
The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise. It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred.
Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough—but never less than that.)
The President’s purported recess appointment of Cordray would render the Senate’s advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong that Senator Mitch McConnell (R–KY) has already denounced. But it fits a pattern of extra-constitutional abuse by the White House that seems more interested in energizing a liberal base than safeguarding the office of the presidency.
As a former OLC lawyer, I have and will continue to defend President Obama’s issuance of signing statements and other powers that are truly his, but there is no argument that the President can make a recess appointment without doing serious damage to the office Obama holds.
Press reports suggest that “White House lawyers” advised the President that he has such power. What did Attorney General Eric Holder, the most senior lawyer for the President, have to say about that? If he or others at DOJ were asked and provided an affirmative response, that is surprising enough. If Holder was not asked, that is equally telling.
No matter how the decision was reached in the White House, both houses of Congress should respond forcefully to this tyrannical abuse of power, and as soon as possible. A lawsuit would take time and faces various jurisdictional problems that are not necessary to relate here. If a party with standing could be found before the agency head took any adverse action, the courts still might decline to rule on the matter, believing that it is a political question. But that would not mean that there was no wrong or that Congress is without any power to respond.
Congress and the general public should speak out vigorously lest this usurpation lead to yet others.
*Update: In addition to the Cordray appointment, President Obama is also making three recess appointments to the National Labor Relations Board.