Is the Cordray Recess Appointment Constitutional?

The recess appointment of Richard Cordray has produced what appears to be the intended political response. The White House wanted to highlight the GOP blocking not just the head of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. Over the last few days I have been called by various media outfits for a supporting view of the recess appointment of Cordray. However, I do not support the appointments and believe they raise serious constitutional problems.

First let me begin by saying that the blocking of Cordray is wrong and itself raises questions over the dysfunctional effect of the filibuster power. Moreover, the Senate has continued to use its own abusive unchecked powers like blues-slipping, which I have long criticized with recess appointments.

The Cordray controversy, however, combines the controversial use of filibustering with the controversial practice of recess appointments — a perfect storm of dysfunctional actions by both parties. I was highly critical of recess appointments during the Bush administration. These appointments, particularly of judges, circumvents the constitutional process and represents an unchecked power with limited textual support in the constitution. This case in particular is a clear effort to deny the Senate its authority to share the power of appointment of high-ranking officials. It has nothing to do with the merits. I like Cordray, but circumventing the Constitution is no solution to a political stalemate.

Recess appointments do have support in the Constitution. Article II, Section 2 of the U.S. Constitution states:

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.

The power, however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practice necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations. However, Democrats have to stop citing the Republicans as precedent when they vehemently objected to the same practices. If it was wrong then, it is wrong now. Indeed, the brief length of this “recess” makes this a particularly wrong-headed move.

The long practice of judicial appointments is particularly obnoxious in my view. In 2000, Bill Clinton gave Roger L. Gregory a recess appointment to the Fourth Circuit. (He was later renominated Gregory and secured confirmation). In 2004, Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit and William H. Pryor to the Eleventh Circuit Court of Appeals. I have long argued that the Senate should adopt a rule that it would vote against the later confirmation of any judge given such a recess appointment on principle. Citizens are entitled to the guarantee of a federal judge confirmed by the Senate and given life tenure.

The dangers of such appointments is made evident by George Washington’s appointment of South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. I have previously written about Rutledge — a man who was demonstrably deranged, later rejected by the Senate, and attempted suicide.

The Justice’s Office of Legal Counsel in 1989 indicated that presidents cannot make recess appointments during Senate breaks of less than three days — a long-standing guiding principle. For that reason, Congress decided not to break for more than three days this year — a decision clearly within the power of members. In this case, the House refused to consent to the Senate adjourning for more than three days, which is its perogative under the Constitution. Neither house can adjourn without the consent of the other under Article I, Section 5.

Once again, I believe Democrats are blinded by the immediate political controversy and not considering the long-term implications of such appointments. Previously, some of these same members (including Senate Majority Leader Harry Reid (D-Nev.)) used precisely this power to block recess appointments by President Bush.

While this pro forma session may seem like dirty pool, it is clearly constitutional. Moreover, it was not entirely pro forma since three days after going into the session, Congress passed the President’s demand for a two-month payroll tax holiday.

Once again, I am generally opposed to modern recess appointments designed to circumvent political opposition in Congress. However, this is different. If this is a valid recess for such appointments, a president could circumvent the process with the slightest interruption of sessions. Is that the precedent Democrats want to establish. President Obama has already surpassed Richard Nixon in the development of an imperial presidency of unchecked executive powers.

The Framers laid out a detailed process for the appointment and confirmation of officials as a shared power of both the legislative and executive branches. It has rarely been a smooth relationship — shared power often produce tensions whether between siblings in a family or sister branches in a tripartite government. The framers understood and expected such tensions. They used the rivaling interests of the branches to serve as checks and balances. The Administration does not like the fact that the Senate is withholding its consent. However, that is like complaining about the weather. You can rage at the rain or find shelter in our system through compromise.

There is a good chance that a federal court would again avoid such a constitutional challenge by saying that it is a matter for the political branches to work out. Courts have increasingly avoided their responsibility to answer such questions by deferring to the political process when this practice undermines the political process established by the Framers. What is clear is that the President has a recess appointment power and the question is whether there is truly an implied period after which this power may be constitutionally used. That is a difficult question given the ambiguity of the text. However, it is not a close question in terms of the dysfunctional role played by this practice, in my view. It is not something that should be applauded merely because it puts the opposing party in a tough position or fits with a campaign theme.

It seems that this is a good fight to have politically for the White House and certainly it highlights a wedge issue with the GOP. However, it is not good for the Constitution or, in the long run, the country.

98 thoughts on “Is the Cordray Recess Appointment Constitutional?

  1. Coming soon to a bookstore nearby?

    Takeover II: Another Imperial Presidency and the Increasing Subversion of American Democracy (by Charlie Savage?)

    Just a thought…

  2. “Vacancies that may happen during the Recess of the Senate”

    Sounds to me like a literal reading makes it apply only when the vacancy happens during a Senate recess.

    For example, an official dies or becomes incapacitated while the Senate is in recess, so the President appoints someone to fill the vacancy forthwith.

    That would surely limit this type of event to a rarity.

  3. I think you’re giving short shrift to the clear indication that the Republicans arranged these “pro forma” sessions as a ploy to keep Obama from making any recess appointments, and therefore, in a very real sense, the Republicans have perpetrated a fraud on the American people. The vast majority of Congress is indeed in ACTUAL if not formal recess, and Obama was right to challenge this fraudulent behavior by making the recess appointments. However, since a lawsuit’s already been announced, I assume that at some point, the Supreme Court will weigh in.

  4. politics vs law, again. Maybe when this gets challenged in court well see the judiciary kicked up into the political realm even more. Or maybe not.

    “They do it too” (I can be as dysfunctional as you), except it does seem the repubs have raised (“lowered”) the bar to dysfunction more than usual with the pro forma gambit(s). And Barry has one-undered them.

    Wonder whether the admin timing was based on giving Cordray the longest recess term possible, or testing new grouind in what constitues a recess for the purpose of appointment?

  5. I am having a hard time with this issue. I doubt that the appointment of Cordray via Article II Section 2 of the Constitution will have a lasting effect on anything since his appointment will expire at the end of the 112th. The appointment of someone to an office with a fixed term of five years (and the appointment expires at the end of the session) is quite different than a recess appointment of a judge or justice which while only lasting until the end of a current Congress allows the appointee to exercise the judicial power of the United States during that ‘interregnum’. The problem with judicial recess appointments of an appellate judge who does not have tenure on ‘good behavior’ is that s/he can bind future courts (as opposed to a trial judge) under the principes of stare decisis. While Rutledge may have been a lousy appointment had he gone through the confirmation process as it existed in 1795 and been issued a commission after confirmation it would not have rendered him sane or non-suicidal or any more qualified to be a justice. Judicial appointments via Article II, Section 2 have been common in our history. One that does strike me as a good appointment was that of Chief Justice Earl Warren who was named chief in September of 1953 while Congtress was in rescess. He was nominated later and confirmed by the Senate in March of 1954. It was Warren after all who engineered a unanimous court in Brown vs Board of Education.
    Congress when it created the CFPB exempted it from control of both the executive and legislative branches and gave it an interesting financial base: the Federal Reserve system which has to fund it. It also amended into the act an interesting poison pill, forbidding the new agency to exercise its new rule making powers and oversight powers until a director was seated. This itself is an indication that the Congress wants the agency to be a eunuch: no director no power. This collision between the branches is most assuredly a poltical question and in theory at least should be worked out by the Congress and the President and, dare I add,ultimately by the People of the US in their power to retire congress critters in November. I believe the statute was designed to fail and is an example of what happens when the legislative branch is beholden to the ‘people’ ( as defined by Citizens United) who paid to send them to DC rather than being beholden to an electorate composed of real flesh and blood people. At any rate I seriously doubt that the courts will upend this appointment because it is clearly a dispute between co-equal branches of government and one which courts have been loathe to venture into. At any rate I have no doubt that congressional shenanigans will continue. I for one will sit back and watch. Things would be so much easier if I were running the show.

  6. I would not argue constitutional issues with JT, however, there is another factor in play. The GOP has been using these nominations as a tool to gain control over the CPB and NLRB which is a violation in spirit if not in fact of the legisilation that created these programs. If they achieve their goals of control or elimination of these programs it might well be as long lasting a problem as the prof sees in the constitutional issues. Obviously, there are no rules inside the beltway.

  7. Professor,

    I have no doubt your analysis is correct and that the “recess appointment”
    method is bad from a Constitutional perspective. However, the coming court case probably going up to SCOTUS is good. Given the SCOTUS partisan bent it is likely they will rule against the Administration, thereby establishing good precedent. If they rule for the Administration, the the practice becomes legitimate. A bad precedent no doubt, but like in Bush 2000 the argument is over, unless Congress passes a law which would over ride a
    Presidential veto. I’m not so sure that this potential court case wasn’t part of the Administration’s thinking.

  8. Mike,

    If I recall….all appointments are with the Advice and Consent of the Senate… I am unsure why approval is needed after Bush set a really good precedent….

  9. This is the Administration’s position:

    “You may have heard about President Obama’s appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau.

    But I wanted to make sure you saw this, too: This week, President Obama also appointed three new people to the National Labor Relations Board, the independent agency that upholds and enforces our labor laws.

    Here’s why he had no choice: The board’s designed to have five members, but recently has only had three — the bare minimum needed to operate. Wednesday, its third member’s term expired, which would’ve ground this critical agency’s work protecting workers to a halt. Even facing that deadline, the Senate failed to act.

    In fact, Senate Republicans were willing to block any appointee, even a member of their own party. They don’t believe workers should have a way to ensure their rights are protected — so much so that they’d been sitting on one member’s nomination for more than a year.

    Right now, we need to show that we have the President’s back.

    Stand with the President and his decision to make sure the NLRB can keep doing its job.

    Unsurprisingly, the GOP cried foul. One Senate Republican called the board an “out-of-control rogue bureaucracy.” Mitt Romney said he’d be alright eliminating the NLRB altogether.

    But President Obama has said all along that if Congress refuses to act to bring more economic security to the middle class, he will.

    And this week’s decision, which will help protect workers’ rights and middle class families, was just one more example that he’s not going to sit around and wait while Congress plays politics.

    The job of the NLRB shouldn’t be controversial. It’s responsible for carrying out simple, common-sense protections for our workers: running fair elections when workers want to unionize, hearing cases when workers’ rights have been violated, and cracking down on employers who violate those rights. It’s a critical player in making sure Americans have a safe and fair workplace.

    I think the millions of Americans who have benefited from labor laws and this board’s decisions — the five-day work week, child labor laws, the minimum wage — would appreciate that the board can continue to work today, thanks to the President’s leadership.

    That’s why I’m asking you to show your support. Say you stand with the President’s decision to protect workers’ rights:


    Jen O’Malley Dillon
    Deputy Campaign Manager
    Obama for America”

  10. I am unclear how the Republicans can keep the Senate in session without a majority. Also, for what it is worth, I recall news reports showing that Sen. Webb used to preside over an otherwise empty chamber for a few minutes each day to prevent Pres. Bush from making recess appointments.

  11. JN — “The power [to make recess appointments], however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practic[al] necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations.”

    Ay, there’s the rub: “when this clause was first put into effect” v. “in modern times.”

    The Senate can avoid recess appointments in modern times by doing its damn job — vote the nomination down. But no, the nominee may actually be approved! But only if there is no blue-slip and the nomination first attains a 60 member cloture vote. And staying in session — pro forma, any way — to avoid recess appointments. In modern times, this is BS

    The President has his own job to perform and he is entitled to have his own appointees at helm in the implementation of the laws of the United States. The dilatory tactics of the Senate, IMHO, are unconstitutional.

    Every single vote in the Congress should be by majority vote except where the Constitution expressly provides other wise. Period. The Senate’s failure to comply with the plain terms of the Constitution, in modern times, distorts alarming expands those protections of minority views when first put into effect.

    See following . . .

  12. There are seven states which have a single U.S. Representative. The following is a comparison of the vote received by the at large Representative and the Senator from each state in the 2008 election. The name of the state will be given, then the number of votes for the Representative followed by those for the Senator. Three states did not elect Senators in 2008 (denoted by NA), and one state elected two Senators – one for a full term and one for an unexpired term (listed in that order). Their vote counts will be given in that order.

    Alaska: 158,939 v. 151,767
    Delaware: 235,437 v. NA
    Montana: 308,470 v. 348,289
    N. Dakota: 168,601 v. NA
    S. Dakota: 256,041 v. 237,889
    Vermont: 248,203 v. NA
    Wyoming: 131,244 v. 189,046 & 183,063

    The Representatives elected in Alaska and S. Dakota received more votes than did their respective Senators. Excluding the Representative from Wyoming, every at large Representative out polled the Alaska Senator. Three at large Representatives out polled every small state Senator except for Montana’s.

    More importantly, 20 other representatives from around the country out polled every small state Senator except Wyoming’s. Yet none of these Representatives can single handedly kill legislation or nominations by placing a hold on it, but these small state Senators can. This hardly comports with the one man, one vote concept.

    The mere fact that these small states have two Senators should vitiate the need of Senatorial holds or filibusters. Every vote in the Senate, except as otherwise provided by the express terms of the Constitution, should be by simple majority.

  13. The people should have a say in who is being appointed and the law was set up to account for long stretches of time when congress would not be in session, not for a 2 week vacation or recess.

    the law should be amended if presidents cannot submit to original intent.

  14. I understand your argument Professor, but the precedent for recess appointments goes back decades and I don’t think it will stop. I don’t even think the Roberts court will stop it. Secondly, I don’t think the Administration had any choice. If the Republicans can stop all work in the Senate, then he has to appoint people to do the work. Mike S. put it well when he described what Obama is up against. If he does not appoint Cordray then a minority is controlling the government. That is not constitutional, is it? When the Senate can prevent a vote on a candidate who has a majority of Senators in favor of his/her candidacy, then something has to be done to break that logjam. The Judiciary is in a crisis with the vacancy problem and it has been caused by the Republican’s intentional attempts to keep Obama nominees off the bench. At some point, you have to fight fire with fire. The Founding Fathers did not anticipate that a small group of Senators would stop all serious work unless it helps them politically.

  15. This case raises a number of interesting issues, both political and legal. However, I seriously doubt that litigation will resolve the dispute because I cannot foresee the Supreme Court entertaining the case. Its decision would produce partisan rancor and further erode its already damaged public reputation. Furthermore, the political establishment does not deserve a judicial resolution. This dispute virtually begs for application of the in pari delicto doctrine. Republicans are refusing to implement a duly enacted statute and using parliamentary procedure to create a fiction. The President is deliberately ignoring Senate rules to thwart what is in effect a congressional veto attempt and daring a response. Were I a judge, my ruling would be a pox on both your houses.

  16. Mike Appleton,

    Has the government thus evolved to such a degree of impotency that any action it takes must be illegal in order to succeed?

  17. I mean seriously do you think anyone cares if this is “legal” or not? Such niceties are reserved for the masses like us. The past several years have shown beyond any reasonable doubt that laws do not apply to these people.

    Like Darth Sidious said “I will MAKE it legal”

  18. It’s like the 30’s. The Mafia is in charge of the government and two crime families are fighting to take control. We, the governed, just get blown away in the cross-fire.

  19. Smoke and mirrors. Section 1066 of the law that created the bureau says some of, it not most of the bureau’s new powers will be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.”

    “until the Director of the Bureau is confirmed by the Senate.”

  20. “If he does not appoint Cordray then a minority is controlling the government.” (Rafflaw)

    Has something to do with short term vs long term scale; or shortish/longish, too.


    From a practical standpoint, a good argument can be made to break the obstructionist filibuster. Of course the political is woven throughout as well. The ‘supermajority’ nonsense has gotten so far out of hand to render the provision almost laughable when one considers it’s purpose to protect minorities in extraordinary circumstances.

    Let’s just hypothesize that if we had a truly dictatorial majority with a complicit dictatorial executive, how long do you think the attempts of an oppressed minority to thwart the dictatorial impulses by filibuster would last? How else do you call out an abuse of this rule? I know: every four years, blah, blah, blah.


    I hope the Supreme Court stays out of it, if for no other reason than to salvage a bit of dignity for it’s increasingly tarnished reputation as being political. I know, over the long term, the Court is an imperfect reflection of the politics of the nations. But in the short term, in ’emergency’ causes, it can look positively craven (Bush v Gore). More politics on top of the Exec/Congressional impasse, on top of the supermajority impasse . . . Stay out.


    In the absence of a revolution, or an outbreak of common sense, what’s to be done?

  21. Blouise:

    I believe the word “devolved” would probably be more accurate. The legislative branch appears to be in a state of near paralysis. Republicans seem so obsessed with Mitch McConnell’s “one term” agenda that their focus has been to filibuster all legislative proposals by the Administration and to refuse to implement any laws that get enacted over their opposition. They then criticize the President for not accomplishing anything. I would rather deal with my three-year old grandson. When he has the occasional temper tantrum, I get down on the floor and replicate his fussing. He is laughing within a few minutes and we’re on to other matters. I doubt that that procedure would work to end McConnell’s perpetual pout.

  22. Mike Appleton: “This dispute virtually begs for application of the in pari delicto doctrine.”


    Isn’t that Latin for everyone’s guilty therefore no one’s accountable? Seems to me this problem is more a result of a third party, i.e. the electorate, remaining ignorant by design about a certain corpus delecti, i.e. the constitution being used as a urinal puck.

    Seriously Mike, I agree with JT; this shit has to stop. While it may be non-justiciable as a political question, the blatant disregard for constitution screams for a forum wherein the electorate can seek an immediate remedy. Adhering to the highest law in the land cannot be deemed optional simply by categorizing it as political; that contradicts the very intent and purpose of the entire design of the document.

    I don’t know what needs to be done, but this attitude of ‘well, it’s not violating the constitution when our side does it’ is unsustainable.

  23. Bob, Esq.:

    I agree that what’s happening is destructive of constitutional government, but I don’t know what the remedy is. Senators can’t be impeached. I don’t think that mandamus would lie to compel Congress to implement a statute or to fund it, although that might not be a bad idea. Perhaps this reveals a structural flaw in the Constitution, or perhaps it is intentional. Perhaps the Founders believed that these logjams are political in nature and should only be resolved politically.

  24. “Adhering to the highest law in the land cannot be deemed optional simply by categorizing it as political”

    What a great line. Shall we start a list!

    Where does the puck stop? Because the potentially justiciable issue seems to favor the repub obstructionists, it’s a go! Smells a little political to me. Surprise!

  25. What is being surprisingly overlooked with regard to the constitutionality of a recess appointment is the nature of the “vacancy”.

    From Art II Sec 2 Clause 3

    “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate,” … [emphasis added]

    A “vacancy” is an “event” that happens at some point in time. The position constituting the vacancy becomes unfilled for some reason (death, resignation, forced termination, incapacity, etc.). Vacancies which do NOT happen during the recess of the Senate are therefore NOT eligible for recess appointments. This makes perfect sense, since such vacancies have already had (and continue to have) the opportunity for senatorial consideration. While assembled (i.e. not in recess), the Senate may have rejected one or more nominees, may have decided not to consider one or more nominees, or may not have had any nominees made available to them for consideration. If the Senate fails to confirm a nominee and thus fill such a vacancy, it is nevertheless a dispositive decision made on the part of the Senate and its decision must be honored by the Executive.

    To make this point even clearer, consider the following clause in juxtaposition to the former:

    ‘The President shall have Power to fill up all Vacancies during the Recess of the Senate’

    This clause reflects the meaning of the former as it is now interpreted — yet they are not the same, nor do they have the same meaning.

    The purpose of the recess appointment was to avoid having the government hamstrung by a vacancy that occurred during a recess and to avoid having to reconvene the Senate merely for the purpose of addressing such a vacancy. With regard to the appointment of Richard Cordray, that particular vacancy “happened” either when the bill was signed into law or when the CFPB officially began operation last July 21. The Executive announced its nomination of Cordray on July 17, and since that time the Executive has had opportunity to make other nominations, and the Senate has had opportunity to advise and consent, yet they have not as yet chosen to provide that consent. It is not for the Executive to decide that it may now make this appointment because it believes that such a condition is now inconveniencing the government, because the Executive has no such constitutional power. The previous clause in Art II Sec 2 shows that the central tenet here is that the President nominates, and the Senate consents. Circumvention is unconstitutional.

    It is also instructive to consider what Hamilton said about this subject in Federalist #67:

    “…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”… [caps are Hamilton’s]

    While the debate over this issue is now revolving around the intricasies of what constitutes a “recess”, the more important issue is what constitutes a “vacancy”. The upshot of this line of reasoning is that there have probably been no legitimate recess appointments made, by either party, since the 19th century, when Congress actually recessed for extended periods. Perhaps that is why neither side is making mention of this point — because in recognizing this limitation, the power of the Executive is diminished from what has customarily been accepted for it in recent times. But such an attitude does not make such an appointment constitutional.

  26. The Recess Appointments Clause … authorizes the president to act in an exceptional manner when Congress’s absence prevents it from performing its constitutional functions. It should therefore be construed to apply narrowly to an actual inter-session ‘recess’.

    Otherwise, the president will be able to aggrandize his power at the expense of the Senate by invoking an exceptional power — conferred upon him only for the rare situations in which the Senate cannot give advice and consent — and using it during brief Senate adjournments in which there is no such emergency need.

    Senator Edward Kennedy’s amicus brief to the 11th circuit objecting to the 2004 recess appointment by Bush of Judge William Pryor Jr.

  27. If I was the President at this juncture I would do the following: Hold a press conference and provide a list of all appointments which are pending–have been presented for confirmation. Inform the public that at the next recess which occurs after three months I will appoint every single appointee on this list. This will give Congress time to hold hearings, have a committee recommendation up or down and a full vote. At this press conference I would also provide a list of every known committee with a list of its members.
    Finally, any appointee who is filabustered or tabled would be appointed at the very next recess–forget the three month hiatus on those..

  28. omega99:

    Yours is a reasonable analysis, but it means that should a vacancy occur immediately prior to the Senate going into recess (and perhaps before anyone in government learned of the vacancy), the President would be powerless to do anything about it until the Senate reconvened.

    The comments of Hamilton are also interesting. They assume that the Senate will perform its own constitutional duties in good faith. Ironically, the Senate has completely perverted the process by artificially remaining in “session” for the purpose of not voting to confirm or reject while simultaneously denying the President the ability make a temporary appointment.

  29. Obama’s NLRB Appointments: Why the Rush?

    But what about three others who received so-called recess appointments to serve on the National Labor Relations Board?

    Two of the three, both Democrats, were just nominated last month, giving the Senate no time to confirm them, even if Republicans were willing. The third, a Republican, was nominated a year ago, but there is little evidence that Democrats pushed for a vote on his nomination, perhaps because installing him without also confirming another Democrat could have given Republicans a majority on the board.

    If it becomes clear that Obama has little chance of winning a second term, extra-constitutional actions like this set of appointments will seem modest. Supporting this action for partisan reasons will create even more severe and long-term problems when the party in power changes and the precedent has been set.

  30. That ole WSJ. Selective reading as usual.

    And the repubs are shocked, shocked:

    McConnell: “Neither has undergone a single confirmation hearing or a single day of debate by the representatives of the American people,””

    translation:”‘we didn’t get a chance to beat up on them and every other dem target in sight with ‘committee hearing kabuki'”

  31. “Seriously Mike [A], I agree with JT; this shit has to stop. While it may be non-justiciable as a political question, the blatant disregard for constitution screams for a forum wherein the electorate can seek an immediate remedy. Adhering to the highest law in the land cannot be deemed optional simply by categorizing it as political; that contradicts the very intent and purpose of the entire design of the document.”


    You are 100% correct, but here’s the rub. The Republicans in this Congress have openly set out to be as obstructionist as they can be. This type of behavior wasn’t foreseen by our Founding Fathers, although it was that long after adoption that they were involved with much wrangling over Constitutional issues. What is to be done though in a situation like this where one side of the triumvirate is acting in clearly bad faith, by refusing to vote yea or nay on appointments? To take the high (Constitutionally correct) road is the proverbial bringing a knife to a gunfight. If the Republican Congressional obstruction continues, then we will have established that bullying is the proper political tactic in this country. At that point it is the “Constitution Be Damned” anyway.

    The conundrum to me is that our Constitution while representing a leap forward in human affairs, is nevertheless a flawed document. As Oro Lee pointed out at 2:50 pm, our entire system of Congressional representation is seriously flawed. You being more of a expert than I, would know well how many such flaws exist. In the end the only solution to people taking wrongful advantage of these flaws is either a Constitutional Convention (fat chance) or a political solution. It is as you imply a shitty situation.

  32. @Mike Appleton
    Thanks for your reply. You make a valid point about some potential bad timing. I would only say that, should such extraordinary circumstances arise, and should a vacancy create a condition that, for instance, threatened the security of the nation, then under Art II Sec 3, the President would be able to convene the Senate in order to resolve the situation.

    Where I would diverge from your opinion, is the matter of good faith on the part of the Senate. Since, the Legislature represents the “Will” of the people, there is no objective way to measure that good faith against any standard. Although the branches of government are separate, they are not actually equal in that the Legislature “must necessarily predominate” in a republican government. They make law, they appropriate money, they consent to appointments and treaties, they make the rules governing the military and the judiciary, they declare war, in short, they call [nearly] all the shots. The Executive functions to “Execute” the “Will” of the Legislature. And this is how it must be since the Legislature is closest to the people (by district and state). The Framers understood that the natural inclination of government would be to expand the powers of the Executive and senatorial consent of appointments is one such check against this. Undermining such checks opens a path toward tyranny.

  33. Omega99,
    I might agree with you if the Senate Republicans have not urned Democracy upside down by making every important vote one that needs 60 votes or put on a so-called secret hold. Is that the will of the people?

  34. @rafflaw
    Well we have an imperfect system. It is democratic in that the authority of the government is rooted in the people, but in practice, our republican government is not simply democratic, but far more complicated than simple majority rule. The Senate makes its own rules, as does the House, and they can change them at will. The current gridlock in government is undoubtedly reflective of the deep divide across the electorate.

  35. From Swarthmore Mom’s link at 12:00pm:

    John Stewart: “Well played game of asshole’s poker.”


    Sorry Professor, 30 second sessions every three days may satisfy some technical aspect of an advisory position but what about the spirit and the intent of the actual Constitution? When one of the constitutional scholars on this site (and we have several) comes up with a quote from one of the founders that indicates that their original language applied to a F-U technical move by a dysfunctional Congress I will be persuaded to think differently. ‘Till then an advisory from the Justice Department (spits) just isn’t good enough. With all due respect.

    (Not a fan of recess appointments either.)

    Dredd brings up a good point later elaborated on by omega99 and Mike A. Is that language a settled matter of interpretation? It sure seems to have been ignored for decades, score’s of years even?

  36. “A Majority of each (House) shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day … Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days …” I don’t see much room in Article I Section 5 authorizing “pro-forma” sessions in the House whose sole purpose is to nullify an enumerated presidential power authorized in Article II Section 2.

    Indeed the Constitution specifies a recess “of the Senate”, not of Congress as a whole when describing the recess appointment – and it does not use the term “adjourn” as in Article I Section 5. Which makes me wonder if a recess might actually exist whenever the Senate lacks a quorum for more than 3 days.

  37. Omega,
    If the Senate can make its own rules that circumvent the will of the people, as we know they can, then the elected officials are not representing the people when they obstruct legitimate and important majority approved business.

  38. “Adhering to the highest law in the land cannot be deemed optional simply by categorizing it as political; that contradicts the very intent and purpose of the entire design of the document.” (Bob Esq)

    “Perhaps this reveals a structural flaw in the Constitution, or perhaps it is intentional. Perhaps the Founders believed that these logjams are political in nature and should only be resolved politically.” (Mike A)

    Straight out now … no flattery involved … when two such fine legal minds recognize the problem and have no ides what the solution is … gentlemen, we are in deep, deep shit!

  39. Or perhaps I should ask …Is this an indication of a structural flaw within the Constitution?

    If it is, then it should be acknowledged and the process of correcting it begun.

  40. Blouise,
    I don’t see it as a structural flaw in the Constitution. It is a structural flaw in the character of the men and women who are leading the once proud Republican Party. When decisions are made to benefit a party and not the country, that is where the structural flaw can be verified. Our Founding Fathers never imagined that Senators would sell their souls to corporations. At least not to this extent.

  41. the senate was never meant to reflect the will of the people.

    i doubt the founding fathers ever envisioned a black man as president either.

  42. pete
    1, January 6, 2012 at 11:58 pm
    the senate was never meant to reflect the will of the people.

    True, and in need of periodic repetition.

  43. House Democrats Rush Floor Demanding Republicans Come Back To Work, GOP Cuts Off C-SPAN

    House Minority Leader Nancy Pelosi (D-CA) and a group of Democratic lawmakers took to an empty House floor today to demonstrate that they were willing to work while Republicans lawmakers are at home. “Where are the Republicans?” demanded Assistant to the Minority Leader James Clyburn (R-SC). Joining Pelosi and Clyburn were five other House Democrats who are assigned to the payroll-tax extension conference committee.

    Rep. Jeff Denham (R-CA), representing House Republicans, quickly banged his gavel over the Democrats’ voices, and instructed the clerk to stop taking notes of the proceedings. Moments later, the microphones were silenced and C-SPAN’s video feed was cut. (The House leadership controls the cameras and has previously cut video of Democrats on the floor.)

    The theatrical stunt also serves to underscore President Obama’s claim this week that Congress is effectively in recess, thus allowing him to make recess appointments, even though the Senate has been holding 30-second long pro-forma sessions.

  44. C-Span really needs to have control of their own cameras and microphones. It should not be at the whim of whoever is in charge–this is news and needs to be covered. I would be in favor of a live feed 24-7 as long as there is anyone speaking or doing any of the people’s business in either chamber.

    C-Span is politics in the raw. Not for everyone, but it is making and keeping a public record of what happens that we, the taxpayers, are getting for our money. Lately, it hasn’t been much.

  45. There is a real, not very subtle difference, between reflecting the will of the people and doing the people’s business, I think. Having a functional branch of government shouldn’t be asking too much.

  46. pete 1, January 6, 2012 at 11:58 pm:

    “the senate was never meant to reflect the will of the people.”

    Until the passage of the 17th Amendment.

  47. One thing about the decision that I think has been overlooked for I see a lot of legal and interesting opinions here,the people understand what these two agencies do,and its a win layman wise.

  48. Mike Appleton,

    In New York, writs of mandamus are covered under Article 78 of the NYCPLR and the sole issue is whether the party failed to perform a duty prescribed by law. If the common law/Fed standard is the same then it would appear that such a writ would have a chance subject to a few incredibly convincing arguments getting you over the justiciability hurdles of political question and standing.

    Ultimately the only remedy I see in the long term is mandatory secondary education reform viz a course in basic constitutional law. Decreasing the ignorance just may prevent more logjams in the future.

  49. Mike S.,

    I understand your viewpoint however what you ‘re doing is attempting to excuse an unconstitutional act of one party by claiming “the other party started it.” The issue is much larger than the immediate problem of making an appointment with the advice and consent of the senate. The problem is becoming more and more comfortable with ignoring the rules by which our government is designed to run under. The more you rationalize away unconstitutional acts as being politically expedient in a favorable manner, the more you become the frog in a pot of water gradually coming to a boil.

  50. Bob,Esq.,
    The education issue can’t hurt. What I am afraid of is who is deciding what goes into the books? We have seen how the Texas book purchases have impacted the rest of the country.

  51. Rafflaw,

    When I say basic, I’m talking about the genesis of the document circa 1787 and a firm understanding of the underlying concept that rights confer power not vice versa.

    When you teach that the constitution does as the name suggests and delegates SPECIFICALLY ENUMERATED POWERS, that’s not an issue up for political debate. It’s a mathematical order of operations fundamental to comprehending ANY constitutional issue.

  52. That legal technicality ensures that Cordray’s power will be legally crippled, said Roger Pilon, the founder and director of the Cato Institute’s Center for Constitutional Studies.

    “I don’t think he would have the authority to act” because he still hasn’t been confirmed by the Senate, Pilon said. “As soon as he did [try to impose a decision], it would be challenged [in court] by one of the people or entities that is affected.”

  53. Bdaman,

    The Cato Institute was created by Bob Crane and Charles Koch, President of Koch Industries. Its directives and writings are libertarian in style and substance.

    Any organization controlled by the Koch crime family has no credibility with me, and I suspect most of those who write here.

    I have heard several Republican spokesmen in the past couple of days talking about how qualified Mr. Cordray is and what a great fellow he seems to be. Their sole objection to his nomination is that it is their intention to cripple or disable the Consumer Protection Agency, so the big banks and investment firms can continue to behave like the Robber Barons of industry a hundred years ago.

    If it is humanly possible, they have no intention of letting Richard Cordray do his job as mandated by law. To allow him to protect consumers is simply too dangerous to profit margins and bonuses to top management. Just one simple anecdote: Here is one widow’s story of her dealings with Bank of America. This is typical, and not entirely unlike my own dealings with BofA. The link takes you to a highly personal account by Kaili Joy Gray, whose husband died in 2010. As far as I am concerned, the Cato Institute, the Koch brothers and those who would try to keep Richard Cordray from doing his job can go straight to hell. I hope the Courts agree if the Republicans file frivolous lawsuits.,-Bank-of-America,-how-many-times-do-I-have-to-tell-you-my-husband-is%C2%A0dead

  54. “Ultimately the only remedy I see in the long term is mandatory secondary education reform viz a course in basic constitutional law. Decreasing the ignorance just may prevent more logjams in the future.” (Bob, Esq)

    It has been my experience that the simplest solution has always proven to be the best. For a democracy to function properly, the electorate must be educated for as James Madison wrote:

    “A popular government without popular information or the means of acquiring it is but a prologue to Farce or Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power knowledge gives.” (1788)

  55. Blouise,

    If the libertarians, Randians and many Republicans had their way, education would be privatized or made to be done only in the home as home schooling. Jeb Bush is right in the big middle of that effort. Make education private, it becomes the domain of the 1%, and they get to sell the rest of us “learning aids” at a profit. The horrible (and failed) “No Child Left Behind” program was the camel getting his nose into the tent.

    One casualty of NCLB was civics education. In many schools, civics was dropped in favor of teaching to the high stakes tests. Civics needs to be a required course in about the eighth or ninth grade. No kid ought to be able to graduate high school without a good grounding in civics. Some of the idiocy expressed by several commenters on this site reflect the absence of civics from their education.

  56. OS,

    I have long bemoaned the state of Civics instruction in high school as a follow up to what is done in 8th grade. As president of the LWV, I had a standing date with 3 different High Schools in 3 different school system wherein for 1 week I would take over the senior government classes and we would discuss voting, the Constitution, and the student’s responsibility under the Constitution as an adult living in this country. By the end of the third day, every student from stoner to jock to nerd was actively engaged in the discussions. Parents would show up and want to get involved in the discussions and I had to inform all of them that they could observe but participation was restricted to the students. I received no complaints.

    To this day I come across these kids, now full fledged adults with children of their own, who want to talk about what they learned in that week and what they’ve done with that knowledge.

    I do not like state mandated tests but, if they are going to do it then there should be a whole section on the Constitution and in order to graduate, one must pass that test. Hell, OS, they could take the questions straight off the test that new citizens must pass in order to gain citizenship.

  57. “Civics needs to be a required course in about the eighth or ninth grade. No kid ought to be able to graduate high school without a good grounding in civics.”


    Truer words were never written. The failure to ground the last few generations in Civics has been responsible for much of the ignorance the people have for appreciating the workings of government. I’ve felt for a long time that it was done purposefully by the Corporatists so that fooling people would be easier. History also has been give short shrift and a people that doesn’t know their history are easily misled. As for NCLB it was the height of stupidity (or cupidity) to introduce it and shame on those on the Left who supported it.

  58. Blouise,
    You have no doubt read of the students who set up “petition” signing tables in public places, where they tried to get people to sign the Bill of Rights and the Declaration of Independence. The documents were just re-worded a bit to reflect modern language usage. They not only had lots of people refuse to sign, but were accused of being communists, traitors and worse.

    There are a substantial number of high school and college students who cannot find the USA on a globe. I seem to recall one recent Presidential candidate who thought Africa was a country.

  59. Mike, I do not believe in coincidences of that magnitude. Deleting civics from the curriculum is not an accident.

    The ignorant are easier to manipulate than those who have training in critical thinking, history and facts.

    One thing we have learned from behavioral research on learning, especially thanks to the work of Dr. Jerome Bruner, is that once an opinion is formed, no matter how wrong, it is almost impossible to dislodge. We see that every day on this blog.

  60. OS,

    The School systems I worked with took the matter seriously. This was all part of a program developed to teach the responsibilities of voting and all seniors registered to vote as soon as they turned 18. All seniors were required to take the semester long class.

    There are some School system doing a good job.

  61. At the end of the day, the fundamental problem was noted by Bob, Esq. Responding to the abuse of Senate procedural rules by abuse of the recess appointment process has the tendency to legitimize both in the eyes of the public, at least in the sense that they come to be regarded as permissible political conduct. It further erodes respect for the rule of law, and we have seen enough damage to the constitution in the past 10 years to last more than a lifetime.

  62. The onme difference in “Bush did it so it is okay ow” is that, if memory serves, Bush did ot have democrat congresspeople saying outright, ‘we intend to obstruct to keep the president from getting a secoind term.” That kind of announced behavior forces the president’s hand.

  63. Carol,

    I was listening to NPR this morning and Lawrence Tribe was talking about the recess appointments….and how the Courts might say that it was a “Political Question”….then the show went on to talk about …what if a vacany on the Sct Court happened….

    So I googled up the 11th Circuits ideal….hich discusses Kennedy and his suit against Bush…

  64. The whole problem was created by so few, who put so many out of work and made homeless, in order to put one man out of a job.

  65. Of course and I think I did post a bumper sticker a friend had shared with me…or at least a link….”Keeping Millions Unemployed….to get One Man out of a Job”….

  66. Professor Turley, I am new to this site but I am a long time admirer and I respect your POV. I do not know if you read or comment on the comments but frankly this was a real disappointment. I get that recess appointments are not desirable but I also get that there are positions not filled and work not getting done because of the deliberate obstruction and I would have appreciated an answer besides “don’t do it”.

  67. OH, AG Holder sez it’s ok. Well that makes me feel sooooooooo much better! Listen, this Prez is like a little kid who is always testing the boundaries of what he can get away with. The nudging, the dreaded cancerous nudging.
    IMHO if anyone here thinks that POTUS is right in expanding the power of the Presidency then you will get what you deserve when we pave the road for the Imperial President Romney. Get used to it.

  68. I cannot believe the comments of some of the people of this country. Read the Constitution, take a class and find out why we have the protections in there that we do that must be upheld and that this pres made an oath to abide. The senate must advise and check all nominations. These are people placed in power over us and we do not want one man making those decisions without checks and balances to ensure that majority rule, which is us, is represented and not just the interests and agenda of the one man. These checks keep a king from rising or a tyrant and most Presidents abide by the Constitution and the restrictions it intentionally places. The Senate voted on Cordrays nomination, in reviewing the session voting record available to the public, the other nominees were not on the roster which is concerning. Background checks must be done and this takes time and it seems these were rushed through without even being voted on by the Senate or debated over to ensure that the majority-us the people are served. Cordray was not approved by Republicans and Democrats in the Senate not just the Republicans. This should make you mad that the President and the media keep stating the Republicans did it. Republicans voted 47 against Cordray and the Democrats voted 50 for him. You always need a 3/5 majority rule-which represents us as the people as they are the ones we voted and are our only voice to the President and we are supposed to make sure they are voting in our best interests or remove them. There was not a majority rule as that needed at least 60 votes from either party and 60 republicans did not vote for Cordray and 60 Democrats did not vote for him either. This should make you question why they both did not approve the presidents choice? This vote was on 12/8/2011 and is always how this process works, it is supposed to be done majority rule and carefully and thoughtfully not just because one man wants someone. These positions are powerful and they will affect all of us and so prudence should be taken and our interests priority not just the interests of the President which does not represent the majority-which is us! When the President did not get the guy he wanted, instead of honoring majority voting and our Constitution, he appointed him anyway. Also, the appointment was not a vacancy as no one has ever held the position as the new department is not funded yet and new with the Dodd-Frank Bill that both dems and repubs are really concerned with as the powers of this comittee are too far reaching and made both parties uncomfortable with the amount of power yielded. The other nominees were over labor, which also has far reaching power over our economy and our lives, and they did not even have enough time to do background checks on the nominees as they were not even on the roster for the senate to advise and rule on, which is their power granted under our Constitution for our protection. This cannot stand or it will set a very dangerous precedent in the future for our kids and future generations now that the President can appoint whomever he wants, regardless of the majority or double check. No other President has ever made appointments while Congress was in session and this Congress was in session and not in recess. In fact, Reid with Obama as Senator voted for no recesses for the last two years of the Bush Administration to prevent him from making appointments without Congressional approval, being in session under pro forma sessions as in this case. They were afraid that Bush would attempt to put people in powerful positions without the double checks provided for in our constitution by making all appointments advised upon, checked and ruled upon by the Senate before they could be appointed. Bush did not make any appointments without Congressional approval during this time as the Congress never went into recess to, as they proudly stated, to prevent Bush from making appointments on his own while they were in recess. This is not fraud against anyone this is supposed to be how it works and protects us from a king or tyrant rising up appointing people only answerable to him instead of everyone being answerable to the people of this country and put under strict review and checks before they are given power over us. Everyone should write immediately their senators and press for official action to be taken because this act has violated the oath of office the president took to uphold and adhere to our constitution. Making comparisions to other presidents who have made recess appointments is not relevant as this is completely in the power of the President because Congress is officially at “recess.” Both bodies of Congress, consisting of dems and repubs intermixed, state for the record that they were not in “recess.” The president cannot make appointments on his own and we should not allow him to…we should not give up our protections and/or the double checks our constitution affords. A good President shouldn’t want to make appointments that go against Congressional approval as they represent the majority-which is us. When he states he wants to bypass them, he is bypassing us and our interests and putting his interests and agenda above everyone in this country. He shows clearly how he feels about the Constitution and how he feels about democracy of which is ensures and enforces and he clearly shows his feelings about protecting the freedoms and the voice it affords the majority-us. This is not an act of a democratic President but the act of a King in a non-democratic society. Quit with all the Repub and Dem talk, rich and poor talk…united we stand, divided we fall…period. We need to stand together and expect our Constitution to be enforced for our children . Quit believing the media hype…check the records yourself…quit believing opinions..Americans are smarter than that. Our forefathers knew what it was like to be under a king or a tyrant and they knew best how to prevent one from rising..protecting us. Making nomineees be checked and reviewed from the perspective of what the voting public who voted their representatives in to do just wise and prudent and any president who doesn’t want that has another agenda in mind than democracy, equal representation and majority (us) rules and you should be questioning that and standing up against that at all costs.

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