Right-wing media have called President Obama's recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) during a Senate recess of fewer than three days an "open declaration of war on constitutional principles" and an "unprecedented power grab." However, neither the Constitution nor the courts have specified how long the Senate must be in recess for a president to make a recess appointment; past presidents have made recess appointments during recesses of three days or fewer; and congressional Republicans are engaged in unprecedented obstructionism that is preventing hundreds of Obama nominees from being confirmed.
"Unprecedented Power Grab": Conservative Media Attack Cordray Appointment
Big Government: Cordray Appointment "Would Be An Open Declaration Of War On Constitutional Principles And Completely Undermine Our System Of Checks And Balances." From a January 3 post on Andrew Breitbart's Big Government website, headlined "Red Alert: New Unconstitutional Presidential Power Grab May Be Imminent":
So, let's be clear about what is happening here: The President of the United States is planning to use an obscure precedent to claim that a split second in time empowers him to go around Congress to appoint a director to an agency that has broad unchecked, almost dictatorial powers to regulate business in America with little or no oversight from the peoples' representatives in Congress.
Such actions by the president would be an open declaration of war on constitutional principles and completely undermine our system of checks and balances. These kinds of power grabs are exactly how Banana Republics are born. [Big Government, 1/3/12]
NRO: Cordray Appointment Is "Doubly Offensive To The Constitution, Snubbing Congress And Usurping It In One Stroke." In a January 4 post on National Review Online's The Corner, headlined "While Everyone Dissects Iowa, the President Dissects the Constitution," the Competitive Enterprise Institute's Iain Murray wrote:
Sources suggest that the president is going to go ahead and appoint Richard Cordray to appoint the new regulatory behemoth called the Consumer Financial Protection Bureau. He will do this as a recess appointment, despite the fact that the Senate isn't in recess. My colleague John Berlau has the details at Openmarket.
As John implies, this appointment is doubly offensive to the Constitution, snubbing Congress and usurping it in one stroke. I humbly suggest that it is time for the conservative movement to focus on what the president is doing here. [National Review Online, The Corner, 1/4/12]
Drudge Report: "Liberals Press Obama To Ignore Rules, Appoint Cordray Without Congressional Approval." A January 4 Drudge Report headline read:
[Drudge Report, 1/4/12]
FoxNews.com Op-Ed: "Obama's Cordray Appointment Mocks The Constitution." From a January 4 FoxNews.com opinion piece by Phil Kerpen, Vice President for policy at Americans for Prosperity, headlined "Obama's Cordray Appointment Mocks the Constitution":
In 2008 candidate Sen. Barack Obama famously said: "This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing and end run around Congress."
Now, we find that not only was he kidding about signing statements -- he recently used one to ignore about 20 provisions of the omnibus spending bill -- but Obama also believes he can decide for himself that the Senate is in recess when it is not, overturn at least a hundred years of precedent, and bypass the Constitution's advice and consent requirement.
Moreover, the president now considers it a political virtue that he is doing precisely what he criticized George Bush for doing: "make laws as he is going along." Obama now says: "I refuse to take 'No' for an answer... when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them."
If he were acting within the confines of the law and the Constitution, the argument might make sense. But Obama has now adopted a theory of executive power so expansive that a reporter at a recent press conference understandably asked whether the president believes we have a virtual monarchy, a president of unlimited powers subject only to periodic elections but not to the rule of law. [FoxNews.com, 1/4/12]
Geller: "More Of Obama's Hurry Up Fascism. The Thug Presidency Continues." In a January 4 post on her blog Atlas Shrugs, headlined "Obama'[s] Unprecedented Appointment of New Government Czar," Pam Geller wrote:
More of Obama's hurry up fascism. The thug presidency continues.
If it is something no president has ever done, you can count on O to do it. If not before November 2012, than certanly afterward. [Atlas Shrugs, 1/4/12]
Fox's Monica Crowley: "This Is Another Unprecedented Power Grab By This President." From the January 4 edition of Fox News' America Live:
MONICA CROWLEY (Fox News contributor): I think this is another unprecedented power grab by this president. Look, there's a longstanding precedent that says, and is indicated for presidents over many, many decades, that if the Senate is out of session for more than ten days, then the president is allowed to make a recess appointment. What we have here is the president actually not only violating that precedent, Martha, but violating what his own administration argued just about two years ago when their own deputy solicitor general argued to the Supreme Court that the president can't make this kind of recess appointment if the Senate is out of session for less than three days.
MARTHA MacCALLUM (guest host): Well, Monica, let me ask you -- this is sort of the detail issue of this in terms of the big picture. Do you think anything's going to change? Do you think everyone's just going to say, OK, this is what happened, or are they going to let it lie?
CROWLEY: Well no, I think Republicans --
MacCallum: They're going to fight it.
CROWLEY: on Capitol Hill, I think [House Speaker] John Boehner [R-OH], I think they are furious by this because it raises constitutional issues. But look, Martha, here's the thing: President Obama has never made a mystery of who he is, what he's intended to do, what his philosophy is. He has told us repeatedly over many months that this is what he was going to do, that he was going to end-run the congress -- Democrats and Republicans alike -- to get his agenda through. Executive fiat, through bureaucracies, recess appointments. This is just one of the many pieces to the puzzle. [Fox News, America Live, 1/4/12]
Constitution, Courts Have Not Specified How Long Senate Must Be In Recess For A President To Make A Recess Appointment
Congressional Research Service: "The Constitution Does Not Specify" The Necessary Length Of A Recess. From a December 2011 Congressional Research Service report:
The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. [Congressional Research Service, "Recess Appointments: Frequently Asked Questions," 12/12/11]
In 2004, Appeals Court Did Not Seek To Establish A Limit In Finding A 10-Day Recess Acceptable. In the 2004 case Evans v. Stephens, plaintiffs challenged the recess appointment of William H. Pryor, Jr. to the Court of Appeals for the Eleventh Circuit. In upholding Pryor's appointment, the Eleventh Circuit stated:
The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President's appointment power under the Recess Appointments Clause. And we do not set that limit today. Although a President has not before appointed a judge to an Article III court during an intrasession recess as short as the one in this case, appointments to other offices -- offices ordinarily requiring Senate confirmation -- have been made during an intrasession recess of about this length or shorter. Furthermore, several times in the past, fairly short intrasession recesses have given rise to presidential appointments of judges to Article III court. [Evans v. Stephens, Majority opinion of the Eleventh Circuit Court of Appeals, 10/14/04]
Past Presidents Have Made Recess Appointments During Recesses Of Three Days Or Fewer
CRS: Truman, Teddy Roosevelt Both Made Recess Appointments During Shorter Recesses. From the December 2011 Congressional Research Service report:
On at least two occasions in the past, the President has made recess appointments during recesses of three days or less between sessions. On one of these occasions, the President made a recess appointment during an intersession recess of three days or less, where the Senate had adjourned sine die under the terms of a concurrent resolution. The adjournment began when the Senate adjourned the second session of the 80th Congress sine die on December 31, 1948, and concluded when the first session of the 81st Congress was convened on January 3, 1949. On January 1, 1949, during this three-day adjournment between sessions, official records indicate that President Harry S Truman recess appointed Oswald Ryan to be a Member of the Civil Aeronautics Board. Ryan had been serving on the board, and President Truman appointed him to a new term. Notably, the adoption of a concurrent resolution prior to this short intersession recess distinguishes it from the short intrasession recesses resulting from practices during the 112th Congress, where no concurrent resolution had been introduced.
On the other of the two occasions, the President made recess appointments during a transition between sessions of less than a day in length, where no concurrent resolution regarding the transition between sessions had been adopted. In fact, it appears that little time elapsed between the sessions on this occasion. When the first session of the Congress ended, at noon on December 7, 1903, and the second session began soon thereafter, President Theodore Roosevelt made over 160 recess appointments -- mostly of military officers. President Roosevelt treated the period between these sessions as a "constructive recess." [Congressional Research Service, "Recess Appointments: Frequently Asked Questions," 12/12/11]
Eleventh Circuit: There Is No Constitutional Difference Between Inter- And Intrasession Recesses. In a January 3 blog post, ThinkProgress.org's Ian Millhiser wrote:
A few commentators have suggested that this precedent only applies to what are known as "intersession" recesses -- that is, the recess that occurs around the beginning of each new year when one session of Congress ends and another begins. Under this theory, President Obama blew his chance to make recess appointments when he allowed the second session of the 112th Congress to begin at noon today without making any appointments. This argument, however, has no basis in the Constitution itself. As Evans explains, "the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause," and "the main purpose of the Recess Appointments Clause -- to enable the President to fill vacancies to assure the proper functioning of our government -- supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause." [ThinkProgress.org, 1/3/12]
Republicans Are Engaged In Unprecedented Obstructionism
Hundreds Of Obama Nominees Are Currently Awaiting Confirmation. According to the White House website that tracks nominations and confirmations, there are more than 200 outstanding executive and judicial nominees who have not been confirmed. [WhiteHouse.gov, accessed 1/4/12]
GOP Senators Opposed Cordray Nomination Over "Structure And Scope" Of Consumer Protection Agency, Not His Qualifications Or Opinions. On December 8, 2011, Senate Republicans blocked Obama's nomination of Richard Cordray to be the director of the CFPB. As Politico reported: "Republicans made clear they had no qualms with Cordray himself, and they insisted they back 'strong and effective oversight.' But they were peeved that Obama had ignored concerns they raised seven months ago about the structure and scope of the agency." [Politico, 12/8/11]
- Sen. Sherrod Brown: Senate Historian Told Me This "Has Never Happened." In a December 7, 2011, interview with PBS, Senator Sherrod Brown (D-OH) said that he asked a Senate historian: "Has this ever happened, where one political party has opposed a nominee solely because they don't like the agency over which he -- which he will run?" Brown said that Senate historian told him "that has never happened." [PBS.org, 12/7/11]
The House Is Preventing The Senate From Recessing For Longer Than Three Days. From the December 2011 CRS report:
During the first few months of the 112th Congress, the House and Senate passed concurrent resolutions of adjournment prior to periods of absence of more than three days. Throughout this period, the Senate did not use the pro forma session practice during the resulting recesses.
During the middle of the first session of the 112th Congress, a new related practice appeared to emerge. On May 25, 2011, in a letter to Speaker of the House John Boehner, 20 Senators urged him "to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president's term."
The letter stated that "President Obama has used recess appointments to fill powerful positions with individuals whose views are so outside the mainstream that they cannot be confirmed by the Senate of the United States," and it referred to the Senate practices of 2007 as "a successful attempt to thwart President Bush's recess appointment powers." The request of the Senators appeared intended to similarly block President Obama from using the recess appointment power.
In a June 15, 2011 letter to the Speaker of the House, the House majority leader, and the House majority whip, 78 Representatives requested that "all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress."
As of December 8, 2011, no concurrent resolution of adjournment had been introduced in either chamber since May 12, 2011. During periods of extended absence, the Senate has used pro forma sessions to avoid recesses of more than three days. [Congressional Research Service, "Recess Appointments: Frequently Asked Questions," 12/12/11]
Obama Has Made Fewer Recess Appointments Than Previous Presidents. From the December 2011 CRS report:
President William J. Clinton made 139 recess appointments, 95 to full-time positions. President George W. Bush made 171 recess appointments, of which 99 were to full-time positions. As of December 8, 2011, President Barack Obama had made 28 recess appointments, all to full-time positions. [Congressional Research Service, "Recess Appointments: Frequently Asked Questions," 12/12/11]
Head Of Bush's Office Of Legal Counsel Suggested Obama Exercise His Recess Appointment Power
In 2010, Former Bush OLC Head And Deputy Assistant AG Urged Obama To Consider "Exercising His Recess Appointment Power To Challenge The Use Of Pro Forma Sessions." From an October 2010 article in The Washington Post by Steven G. Bradbury and John P. Elwood, who, from 2005 to 2009, served as the head of the Office of Legal Counsel in the Justice Department and deputy assistant attorney general, respectively:
The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in "recess" for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.
The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit.
The alternative will likely be greater gridlock in Washington. This practice will inevitably become the standard operating procedure, and the recess appointment power could become a virtual dead letter -- undermining what the Founders viewed as an essential tool for the effective functioning of our government. [The Washington Post, 10/15/10]
- In A Follow-Up, Elwood Outlined Argument Why Pro Forma Sessions At Which No Business Is Conducted Do Not Interrupt A Recess Of The Senate. From a blog post on the libertarian Volokh Conspiracy blog by Elwood:
In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause "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 few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either "the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject."
Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate's ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate's ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att'y Gen. 631, 633 (1823) ("all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President").
One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt's decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.
It was evidently intended by the framers of the Constitution that ["recess"] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.
S. Rep. No. 58-4389, at 2 (1905).
The argument is that the sort of pro forma sessions that are now going on don't give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.
Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.
Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President's exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices. Cf. McAlpin v. Dana, No. 82-582, slip op. at 14 (D.D.C. Oct. 5, 1982) ("[T]here is no reason to believe that the President's recess appointment power is less important than the Senate's power to subject nominees to the confirmation process."). [Volokh Conspiracy, 1/4/12]