RPC Must Read January 6, 2012

 

The Legality of President Obama’s “Recess” Appointments

 

On January 4, 2012, President Obama announced a recess appointment of Richard Cordray to run the Consumer Financial Protection Bureau.  Additionally, the President announced recess appointments to install Sharon Block, Richard Griffin and Terence Flynn as National Labor Relations Board members. Block and Griffin are Democrats, while Flynn is a Republican.   What makes these appointments noteworthy is that the Senate was not in recess, making the legality of the President’s actions debatable. 

 

As a recent CRS report states:

 

Under the Constitution (Article II, §2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. Generally, the President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office. The Constitution also provides an exception to this process. When the Senate is in recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval (Article II, §2, clause 3).

 

To place in historical perspective, President Bill Clinton made 139 recess appointments and President George W. Bush made 171 recess appoints.  Prior to these recent appointments, President Obama has made 28 recess appointments.  However, not one of these recess appointments was done in the manner of President Obama’s appointments on January 4, 2012.

 

The Constitution is not specific on the length of time the Senate must be in recess before the President can make a recess appointment.  A Department of Justice brief in 1993 implied that the President may make a recess appointment after the Senate is in recess for three or more days.  The brief associated the minimum recess length with Article I, Section 5 of the U.S. Constitution. This “Adjournments Clause” states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ....”

 

There have been examples of recess appointments of three days or less between sessions, but both of these instances are different from President Obama’s recent actions:

 

  • On January 1, 1949, President Harry Truman appointed Oswald Ryan to be a Member of the Civil Aeronautics Board during a three-day adjournment between sessions.  The adoption of a concurrent resolution prior to the intrasession recess is not something practiced in the 112th Congress. 

 

  • On December 7, 1903 President Theodore Roosevelt made over 160 recess appointments when the first session of the 58th Congress ended at noon and the second session began soon thereafter. 

 

Despite these instances of appointments of three days or less in between sessions, each has unique attributes, making their applicability to current laws open to question. 

 

At a White House Press Conference on January 5, White House Press Secretary Jay Carney maintained that the appointments were legal, and that the Senate was not in session, stating, “the Constitution trumps gimmicks.”  However, Todd Gaziano, Director of Heritage’s Center for Legal and Judicial Studies, noted in a recent article, “The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise.”

 

Due to President Obama’s constitutionally questionable appointments, which are without historical precedent, a cloud of uncertainty has arisen regarding the legality of his actions. Moreover, a piece by David Rivkin and Lee Casey points out that President Obama may have not only inadvertently undermined his appointees to the CFPB and the NLRB, but also future decisions by these agencies as they are not lawfully organized.