Congress, Constitutional Law, Politics, Society

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?”

  3. 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:

    Thanks,
    Jen

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

  4. 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….

  5. 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.

  7. 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.

  9. 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.

  10. 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?

  11. 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.

  12. “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.

  17. Coming soon to a bookstore nearby?

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

    Just a thought…

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