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January 04, 2012 8:19 AM Is the President Playing Fair During Recess? The Cordray Appointment

By Sarah Binder

President Obama gave a recess appointment to Richard Cordray to serve as director of the new Consumer Financial Protection Bureau established under Dodd-Frank.  With Senate Republicans vowing to oppose any nominee absent structural reform of the CFPB, a Republican filibuster last month blocked the Senate from securing cloture on Cordray’s nomination.  Because recess appointments last until the end of the “next session,” Cordray’s appointment would last until the end of 2013.

Republicans immediately cried foul, with Senate Minority Leader Mitch McConnell arguing that the recess appointment “threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”   Speaker John Boehner called the move a “power grab,” and McConnell warned that the move took the White House into “uncertain legal territory.”

Republican consternation stems from the nature of the intra-session recess during which the president made the appointment.  Using a tactic developed by Democrats during the second Bush administration, House and Senate Republicans refused to officially recess between the first and second sessions of the current Congress.  Instead, the Senate has scheduled “pro forma” sessions every fourth day.  Why every fourth day?  Republicans maintain that unless an intra-session recess lasts longer than three days, it is technically not a “recess” and thus the president can’t exercise his Constitutional power to make recess appointments (circumventing Senate confirmation).  The source of the “three day” rule turns out to be a Justice Department opinion issued in 1993 during the Clinton administration.

So did the president play unfairly during recess?  Is the appointment on tenuous legal ground?  Although Republicans will likely challenge the appointment in court, it’s hard for me to see the Cordray appointment as more than an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB.   The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation.  And the most recent court case on the matter—when Democratic Senator Ted Kennedy challenged the intra-session recess appointment of William Pryor to the 11th Circuit Court of Appeals in 2004—upheld the right of the administration to make a recess appointment on the 7th day of a ten day intrasession recess, noting the Constitutional ambiguity of a “recess.”  (The Supreme Court declined to take up the case.)  Nor does the longer historical record help us much in evaluating the president’s exercise of the recess appointment power.   Intra-session recesses were rare before the 1940s given the structure of the Congressional calendar for much of the Congress’s history.  Presidents from both parties have made intra-session recess appointments, and they’ll continue to.

Finally, it’s important to keep in mind why the White House is so eager to put a director in place.  Certainly it fits the president’s electoral strategy of championing the rights of consumers as an advocate of the middle class and painting the GOP as a defender of dishonest financial lenders.  But there’s a policy incentive to install Cordray as well.  Under Dodd-Frank, new consumer protection powers can’t be exercised by the CFPB until a Senate-confirmed director is in place.  Not to be too cynical, but does a recess appointee legally meet the definition under the law of a confirmed director?  I sense a second legal challenge brewing.

[Cross-posted at The Monkey Cage]

Sarah Binder is a professor of political science at George Washington University and a senior fellow at the Brookings Institution.

Comments

  • SadOldVet on January 05, 2012 8:14 AM:

    After reading this posting, I have the following questions:

    1) What credibility does anyone from the brookings institute have? major funding from Bank of Ameriscam, ExxonMobile, Japan, Qatar, Taipei, and Senator Dianne "Family Profit over Country" Feinstein among others

    2) Do you have some kind of point you intended to make during your diatribe?

    3) Do you think that Obama playing unfairly is inappropriate in light of the repuknican senators collective goal of f*cking over the country if needed to assure that Obama is not reelected?

  • low-tech cyclist on January 05, 2012 8:56 AM:

    As far as challenging recess appointments go, I thought the Federal courts generally stayed out of squabbles between the legislative and executive branches.

    But anyone being regulated by the CFPB could challenge whether a recess appointee constitutes a Senate-confirmed director, so that's really the potential weak link here. I hope the Solicitor General already has his legal argument together.

  • rbe1 on January 05, 2012 11:56 AM:

    Given the behavior of the congressional republicans over the past three years, I must ask, do you have your head stuck up your behind in calling for fairness ? Fair and balanced, indeed !

  • Neil Bates on January 10, 2012 2:46 PM:

    Sarah, I'm surprised you didn't bring up the issue of the Senate needing a quorum to do business, as specified by the Constitution. They did not have the required quorum (majority) at the time, so presumably President Obama is justified in considering them not really "in session" and is using some small break just to add cover - but doesn't really need it anyway. Of course the “three day” rule is not specified by the Constitution, but thanks for irony alert about it coming from the Clinton Administration.

    Furthermore, the Senate Majority Leader is a Democrat, and should have some say in deciding if they're "in session" - and he would back the President. Finally, this statement may be a good question: "but does a recess appointee legally meet the definition under the law of a confirmed director?" But if the Constitution says the appointment can be made "in recess" then that should mean, it's valid - right?

    "Fine minds make fine distinctions."

  • CDubya on January 12, 2012 3:22 PM:

    @SadOldVet.....take a valium.

    Funny to hear liberals justify Obama's usurpation of power to not only decide when the Senate is "in session", but also to clearly trample the law in naming 3 candidates to the NLRB, two whose names were only shared with the Senate two days prior to them leaving D.C. This gave the Senate no time to conduct interviews or call a committee hearing regarding the nominees. Hell, they didn't even fill out paperwork for the background checks!

    Clearly Obama has no deference to the law or constitutional principles like "separation of powers". He has simply decided he is King.

    @Neil Bates... Obama signed into law the horrendous bill known as Dodd-Frank. The law specifically makes reference to the Director of the CFPB as being "confirmed by the Senate". Mr. Cordray was not. And while the Constitution allows for the president to make recess appointments for cabinet-level positions like the Treasury and Defense, the standard for those appointments is for the Senate to "advise and consent". The standard for the CFPB is much higher, requiring confirmation.

    Not to worry, when Obama leaves office next January, the illegal CFPB can be dissolved by a Republican president. Just hope is doesn't do irrepairable harm in the mean time.

  • Neil Bates on January 12, 2012 6:22 PM:

    CDubya, if recess appointments are allowed, then the President doesn't have to get their consent, or the associated interviewing etc. And you are complaining about not following the Constitution but paid no heed to the quorum issue. As for "confirmed by the Senate" - the Constitution already allows for a way to bypass that, the law can't abrogate that Presidential privilege simply by such wording that can therefore be construed to mean only, that is the nominal baseline procedure. Note this very important sentence from the US Constitution: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
    Yep, "all vacancies" - and the Constitution is the supreme law, that provision would have to be directly nullified.

    See for example http://rortybomb.wordpress.com/2012/01/04/sorry-cato-a-cfpb-recess-appointment-has-full-regulatory-powers, which shows that Cato etc. and supporters employed disingenuous plucking of words out of context. You and they etc. quote "the Director of the Bureau is confirmed by the Senate" but you left out "in accordance with section 1011." And section 1011 refers back to "the Director shall be appointed by the President, by and with the advice and consent of the Senate." - yes, "Senate" but that is the same langauge already in the Constitution, which allow recess appointments even under that rubric.

    See also more from link:
    Congressional Research Services’ May 2011 report Limitations on the Secretary of the Treasury’s Authority to Exercise the Powers of the Bureau of Consumer Financial Protection, footnote #3:

    P.L. 111-203 § 1011. Although the CFP Act requires the CFPB Director to be confirmed by the Senate, the President could appoint a Director temporarily without Senate confirmation through his constitutionally provided power to make recess appointments. See U.S. Const., art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). A recess-appointed Director likely would be considered to have all of the authorities that would be held by a Senate-confirmed Director. CRS Report RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu.

    Let’s go to CRS Report RL33009, Recess Appointments: A Legal Overview, by Vivian S. Chu to follow that citation:

    As a fundamental matter, a recess appointee possesses the same legal authority as a confirmed appointee.[71]

    See also Hogue, supra note 3, at 4; Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (recess appointment is not an “inferior” procedure to appointment with Senate confirmation); Designation of Acting Solicitor Labor, 2002 WL 34461082 (2002) (distinguishing between an temporary designation under the Vacancies Reform Act and a recess appointment—“
    ------------------------

    Finally, the OLC ruled in favor of Obama.