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. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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…

  8. 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.

  9. 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”….

  10. 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”.

  11. 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.

  12. 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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