In a January 19 editorial headlined "Obama's appointment with tyranny: President grabs absolute power in abuse of recess commissions," The Washington Times attacked President Obama over his recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) during a Senate recess of fewer than three days, calling it "lawless" and a "play for absolute appointment-making sovereignty."
However, past presidents have made recess appointments during recesses of three days or fewer, and neither the Constitution nor the courts have specified how long the Senate must be in recess for a president to make a recess appointment. Moreover, congressional Republicans have engaged in unprecedented obstructionism that is preventing hundreds of Obama nominees from being confirmed.
From the Times:
President Obama's lawless Jan. 4 installation of a new director of the Consumer Financial Protection Bureau goes to the heart of his loose interpretation of our Constitution. Mr. Obama's actions show he believes checks and balance apply only to the other branches of government, not to him.
The recess appointment authority has drifted far from what was originally intended by the framers of the Constitution. Article II Section 2 allows that "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." As a plain reading of the text indicates, this was intended to apply to openings that actually occurred when the Senate was in recess, such as when someone in a relevant office resigned, died or was incapacitated. It was a matter of reasonable convenience for the executive, not an invitation for the president to obviate the will of the people. This was the standard interpretation of the text for over a century.
Congress further checked the power of the executive by stipulating no salary would be paid to anyone given a recess appointment if the position to which they were appointed existed during the prior Senate session. This law withered over time as various parties used recess appointments to their advantage, but it was sound legislation while it lasted and prevented much of the contemporary abuse of the power. It should be revisited.
Unchecked power is inimical to liberty. Any legal reasoning that supports unlimited executive authority is thus false on its face. President Obama's play for absolute appointment-making sovereignty should be checked while there's still a republic to save.