How unconstitutional were Obama’s recess appointments?
Originally I would have said “very” but I would have been wrong.
The correct answer, as it turns out, is completely.
The last clause of Section 5 of Article 1 of the Constitution says that “Neither House” of Congress can adjourn for more than three days “without the Consent of the other” house. In this case, the House of Representatives had not formally consented to Senate adjournment. It’s true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let’s hear Mr. Obama’s legal justification.
Democrats had used a similar process to try to thwart Mr. Bush’s recess appointments late in his term when they controlled both the House and the Senate. Prodded by West Virginia’s Robert C. Byrd, who has since died, Majority Leader Harry Reid kept the Senate in pro forma session. Some advisers urged Mr. Bush to ignore the Senate and make recess appointments anyway, but he declined. Now Mr. Reid is supporting Mr. Obama’s decision to make an end run around a Senate practice that he pioneered.
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.
It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having Senators sitting around on the floor reading the papers. The President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.
Is the President going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the President has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the Senators are not working as hard as he did in the Senate
John’s post forced me to read the clause on recess appointments through. Here is what it says in Article II, Section 3:
The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The key words are vacancies “that may happen during the Recess of the Senate.” Those words do not describe the situation with Cordray or with Craig Becker who is now out of office.
What they mean is this: if the vacancy arises in the gap between terms, the President does not have to travel light just because the Senate is not in session. In the founding period, Congress was not in perpetual session to say the least, so this provision meant that if there was no ability to go through the usual process of nomination and confirmation, the President could act on his own. But this vacancy did not “happen,” i.e. arise, during the recess. It carried over from before. At this point the correct construction of the provision is that no one can be appointed during the recess because there was an opportunity to work out the issue earlier. The person to whom this most powerfully applies is the nominee who has been rejected, but accurately read it would cover any substitute nominee as well.
Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”
Within a day, Obama made good on the threat. On Wednesday, he bypassed the congressional approval process and named Richard Cordray as head of the new Consumer Financial Protection Bureau. The appointment, made while the Senate is in a pro forma session and not in recess, came after that chamber blocked Cordray’s confirmation last month.
Not only is Obama trampling precedent that says recess appointments are to be done only after the Senate has been out of session for 10 days or more, he’s also trying to circumvent legislation.
As noted by Mark Calabria of the Cato Institute, the Dodd-Frank bill that created the Consumer Financial Protection Bureau requires the CFPB’s authority to remain with the Treasury secretary until the CFPB director is “confirmed by the Senate.” Cordray still lacks that confirmation.