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
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.
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."
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.