Is the Cordray Appointment Constitutional? >
Obama Can't Make Recess Appointments Without a Recess
Constitution is clear on the Cordray matter; the president's actions must not stand
January 6, 2012
About Phil Kerpen:
Phil Kerpen is president of American Commitment and author of the 2011 book Democracy Denied.
On Tuesday, the Senate gaveled in to start the second session of the 112nd Congress. On Wednesday, Obama declared the Senate to be in recess so he could "recess appoint" Richard Cordray to the Consumer Financial Protection Bureau and radical union lawyers to the National Labor Relations Board. He called them "recess appointments" even though the Senate was not in recess. It's ridiculous.
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Some previous presidents have made aggressive use of the recess appointment power, including President Bush. But this is the crucial point: They made those recess appointments when the Senate was actually in recess.
The Constitution is clear that a Senate recess cannot occur without the consent of the House. Article I, Section 5 says: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days."
[Senate Left Obama With No Choice Over Richard Cordray Appointment.]
Even Supreme Court Justice Elena Kagan agrees, as she explained on April 26, 2010: "Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period. For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007."
Just like Democrats in 2007, Republicans have not called a recess. Yet apparently our president believes that justifies shredding the Constitution and deciding for himself when the Senate is or isn't in recess.
It's an absurd argument and it shouldn't stand up in court.
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- Other Arguments
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#28658
No — Obama's purported recess appointments are unconstitutional and unprecedented
ELIZABETH GARVEY, Legal Policy Analyst in the Heritage Foundation's Center for Legal & Judicial Studies
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#38457
No — What's next? Appointing executive branch officials when the Senate is taking a lunch or bathroom break?
JOHN BERLAU, Director of the Center for Investors and Entrepreneurs at the Competitive Enterprise Institute
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#49176
Yes — "Appointments Clause" of the U.S. Constitution authorizes president to make recess appointments
DAVID ARKUSH, Director of the Congress Watch Division of Public Citizen
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#57286
Yes — President right to appoint Cordray, block Republican assault on the rule of law
IAN MILLHISER, Policy Analyst with the Center for American Progress and Editor of ThinkProgress Justice
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#63574
Yes — Few are raising the objection that Richard Cordray is unqualified for the post
REID CRAMER, Director of the Asset Building Program at the New America Foundation
