Is the president playing fair during recess? The Cordray appointment

by Sarah Binder on January 4, 2012 · 17 comments

in Judicial,Legislative Politics

President Obama today will give a recess appointment to Richard Cordray to serve as director of the new Consumer Financial Protection Bureau established under Dodd-Frank.  With Senate Republicans vowing to oppose any nominee absent structural reform of the CFPB, a Republican filibuster last month blocked the Senate from securing cloture on Cordray’s nomination.  Because recess appointments last until the end of the “next session,” Cordray’s appointment would last until the end of 2013.

Republicans immediately cried foul, with Senate Minority Leader Mitch McConnell arguing that the recess appointment “threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”   Speaker John Boehner called the move a “power grab,” and McConnell warned that the move took the White House into “uncertain legal territory.”

Republican consternation stems from the nature of the intra-session recess during which the president made the appointment.  Using a tactic developed by Democrats during the second Bush administration, House and Senate Republicans refused to officially recess between the first and second sessions of the current Congress.  Instead, the Senate has scheduled “pro forma” sessions every fourth day.  Why every fourth day?  Republicans maintain that unless an intra-session recess lasts longer than three days, it is technically not a “recess” and thus the president can’t exercise his Constitutional power to make recess appointments (circumventing Senate confirmation).  The source of the “three day” rule turns out to be a Justice Department opinion issued in 1993 during the Clinton administration.

So did the president play unfairly during recess?  Is the appointment on tenuous legal ground?  Although Republicans will likely challenge the appointment in court, it’s hard for me to see the Cordray appointment as more than an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB.   The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation.  And the most recent court case on the matter—when Democratic Senator Ted Kennedy challenged the intra-session recess appointment of William Pryor to the 11th Circuit Court of Appeals in 2004—upheld the right of the administration to make a recess appointment on the 7th day of a ten day intrasession recess, noting the Constitutional ambiguity of a “recess.”  (The Supreme Court declined to take up the case.)  Nor does the longer historical record help us much in evaluating the president’s exercise of the recess appointment power.   Intra-session recesses were rare before the 1940s given the structure of the Congressional calendar for much of the Congress’s history.  Presidents from both parties have made intra-session recess appointments, and they’ll continue to.

Finally, it’s important to keep in mind why the White House is so eager to put a director in place.  Certainly it fits the president’s electoral strategy of championing the rights of consumers as an advocate of the middle class and painting the GOP as a defender of dishonest financial lenders.  But there’s a policy incentive to install Cordray as well.  Under Dodd-Frank, new consumer protection powers can’t be exercised by the CFPB until a Senate-confirmed director is in place.  Not to be too cynical, but does a recess appointee legally meet the definition under the law of a confirmed director?  I sense a second legal challenge brewing.

{ 17 comments }

Andreas Moser January 4, 2012 at 1:54 pm

There is no such thing as “fair”. Either it’s legal/constitutional or not.

Steve Smith January 4, 2012 at 2:24 pm

This is one of many frustrating ambiguities in the Constitution.

The argument that Senate can prevent recess appointments by keeping recesses no longer than three days has some constitutional grounding and is backed by Justice Department opinions over the years. Oddly, Congress has accepted those opinions. The argument is that the adjournments clause provides that neither house of Congress can adjourn for more than three days without the consent of the other house. Thus, it is argued, a recess of three or fewer days is not constitutionally significant. A recess of longer than three days opens the possibility of a recess appointment.

The crux of the White House argument must be that circumstances are different when the Senate orders that no business can be conducted in a pro forma session. The president has a credible argument that when the Senate precludes the consideration of any business there is no possible way to consider a nominee and the Constitution gives the president temporary appointment power when the Senate cannot consider a nominee.

By making this recess appointment and encouraging a legal challenge, the president takes a risk that the courts will rule in the Senate’s favor. I think they would. The Senate can argue, citing Article I, Section 5, that the Senate has the power to limit the agenda during any session, often does so, its agenda is not judiciable, and the courts must limit themselves to the question of whether a session is a session, which a pro forma session clearly is (well, maybe not so clearly).

Michael S. Lynch January 4, 2012 at 3:35 pm

My read of this is that Obama is claiming pro forma sessions are not a valid constraint on making recess appointments only during intersession recesses, as opposed to the intrasession recesses discussed by Sarah. As cited by ABC News, senior administration officials claim that the Senate has been in recess since Dec. 23rd and will not end that recess until the chamber returns to formal session on January 23rd. They are clearly referring to the intersession recess occurring between the 112th Congress’s 1st and 2nd sessions, not the intrasession recess occurring between yesterday’s pro forma session and one scheduled for this Friday.

There is a different set of precedents pertaining to the recesses that occur between congressional sessions. Historically, such recesses are not limited by the three day rule required during intrasession breaks. Teddy Roosevelt made 160 recess appointments during between the 1st and 2nd sessions of the 58th Congress. The 1st session ended at noon and the 2nd session started later that day. Truman also made an intersession appointment during a less-than-a-day recess.

If Obama claims that pro forma sessions cannot be held during intersession recesses, this is a much narrower argument than claiming all pro forma session fail to constrain recess appointments. Because it is more narrow, it will be easily defended in the courts. There are no previous cases looking at this particular issue, and ambiguity tends to favor the president. Historically, the Senate has not done well in using the courts to stop presidential attempts to expand the recess appointment power, as we document in a recent paper (http://ajmadonn.myweb.uga.edu/Senate%20Response.pdf). I am not sure why this case would be any different.

anonymous January 4, 2012 at 5:00 pm

Hate to break the news, but the House and Senate both convened the second session of the 112th Congress yesterday (pursuant to the 20th Amendment). Congress is clearly not in an intersession recess. (The White House understands that this is not an intersession recess; presumably part of the point of doing this today, not yesterday, is to make the appointment good through 2013.)

Thomas January 4, 2012 at 6:20 pm

If they convened the second session, doesn’t that mean they ended their recess? The “recess” theory now being used apparently allows intra-day recess appointments, and under this theory there’s nothing left of the Senate’s power.

Jon Shields January 4, 2012 at 9:26 pm

No. Intra-session recess appointments have been going on for decades.

There is no minimum-length rule written in the Constitution or in any statute. The custom has been that recesses should be longer than three days.

Obama is arguing that he is not violating that custom. He is arguing that the Senate has been on vacation, without a quorum, and unable to conduct business or approve nominations for several weeks, and it is that functional length that determines when recess appointments are allowed.

If a court agrees with this argument, it will not set a precedent that would allow intra-day recess appointments (since the argument does not throw out the three day rule). The Senate can remain in town to block recess appointments, if they so choose to.

Michael S. Lynch January 4, 2012 at 3:38 pm

Another minor point. If Obama claims this is an intersession recess appointment Cordray’s appointment would only last through 2012.

Jon Shields January 4, 2012 at 4:44 pm

John Elwood (at the Bush OLC) argued I think that the Senate cannot constitutionally distinguish between recess appointments and confirmed positions for purposes of prohibiting recess appointments. (Otherwise, Congress could forbid all recess appointments.)

So even if the statute was interpreted in a way to foreclose a recess appointment (an interpretation that is dubious in and of itself), it might not be Constitutional. A ruling rejecting this appointment on those grounds would probably call into question scores of previous executive appointments and agency actions.

Thomas January 4, 2012 at 6:19 pm

Jon, the statute doesn’t foreclose recess appointments generally, it prevents the bureau from having any powers prior to the confirmation by the Senate of its initial director. There’s simply a failure of a condition here, and the argument that the condition itself is unconstitutional will be difficult for the Obama administration to make (as the available arguments as I seem them all aggrandize executive power in novel ways).

Jon Shields January 4, 2012 at 7:33 pm

Thomas, I’m not sure that is what the statute says. I don’t see anywhere in the statute that prohibits the bureau from having any powers prior to Senate confirmation of the Director. Rather, the statute simply grants power to a director (without which the agency does not have). The statute also grants a subset of that power to the Treasury Secretary, and the Treasury Secretary has that power until the director is confirmed. (That is the power being used to run the agency today.)

To be specific, I see the words “confirmed” and/or “Senate” mentioned in two relevant places. The first is in Subtitle A, section 1011. It says:

“(b) (2) IN GENERAL- The Office shall be headed by a Director, who shall be appointed by the President, by and with the advice and consent of the Senate.”

It would seem to me that this can be read to allow a recess appointment. This language is used all over the place in all kinds of laws, and if it is read any other way, I would guess that hundreds of previous recess appointments (and all associated executive actions) would be called into question. It would also mean that there could never be a recess appointment — it does not distinguish between the first appointment and subsequent appointments.

The second relevant use of the word “Senate” appears in Subtitle F (the “transfer of authority” section). The section describes how authority is transferred from the pre-existing agencies to the CFPB. (This is only a subset of the ultimate power of the CFPB — other subtitles outline new power no previous agency had, such as the ability to regulate non-bank instititions, abusive practices, etc.)

In Subtitle F section 1066, it says:

“The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011.”

If this is read to distinguish between a confirmation and a recess appointment (as you propose), I don’t think it matters. This would just mean that the Secretary will still have the powers under subtitle F, even if there is a recess-appointed director. In any event, the new powers the director have do not appear in subtitle F; they appear in other subtitles (such as subtitle A). That provision cannot possibly be read to affect the new powers of the Director outside of subtitle F (that the Secretary of the Treasury never had).

Frank in midtown January 4, 2012 at 8:09 pm

If/when the Senate fights this the President will be able to point to the Senates effort as clear and undeniable obstruction. The public is well aware of the previous President’s recess appointments and will not care to know the details of this one. This President seems intent on running against the Legislative branch as well as against the other candidates.

H-Bob January 4, 2012 at 9:07 pm

Article I, Section 5 says that a majority of the Senators is necessary for a quorum to conduct business. The Senate Republicans do not constitute a majority, so there is no quorum and the Senate cannot conduct business. Therefore it is in recess.

anonymous January 5, 2012 at 9:25 am

The concept of a quorum does not work that way in relation to business. The Senate operates (as does the House) on the assumption that a quorum is present, unless demonstrated (procedurally) otherwise. The Senate conducts business (typically by unanimous consent) quite frequently with fewer than a majority present. If it was true that the Senate could never conduct business in this manner, then scores of laws and confirmation of nominations would be invalidated. (One recent prominent instance: there would currently be no enacted “doc fix,” unemployment extension, or short-term payroll tax extension.)

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Stephanie Palmer January 5, 2012 at 10:05 am

McConnell doesn’t speak for me, and he speaks for very few Americans. The only time he spouts off about interim appointments is when a Democrat does it. Who cares? He and his ilk don’t want a Consumer Protection agency because they don’t care about consumers. They much prefer businesses being able to gouge as much out of the consumer purses as possible. This guy and his ilk are very poor examples of human beings.

Bob January 5, 2012 at 11:03 am

So instead of pro formas, will future recess periods be filled with round-the-clock quorum calls? Poor Senate clerks….

Neicie January 5, 2012 at 2:16 pm

The legal framework regarding such appointments was laid in 2004 when the 11th US Circuit Court of Appeals ruled in Evans v Stephen. The court ruled the POTUS has such power and in ruling did not set a minimum length of recess for these type of appointments to be valid. Therefore there is legal precedent for an administration accomplishing recess appointments.

Recess picks date back to Ted Roosevelt who made appointments in a recess of several minutes; such interim appointments continued through the 20th century as shown.
In eight years Reagan made 243, Clinton made 139 and George W Bush made 171. In George H W Bush made 77 in four years. In the past three years Obama has made 29. Obama’s appointments reflect an annual average of 9% which is far less than previous administrations.

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