Is the Cordray Appointment Constitutional? >
The President Abused His Power
Obama's purported recess appointments are unconstitutional and unprecedented
January 6, 2012
About Elizabeth Garvey:
Elizabeth Garvey is a legal policy analyst in the Heritage Foundation's Center for Legal & Judicial Studies.
The Constitution grants the president the power to appoint certain officers, but this power is tempered by the Senate's role of providing advice and consent to all principal officers. The Senate's advice-and-consent duty is not merely a formality but a cornerstone of the separation of powers. When the Senate is not in session for an extended period of time, the president may make temporary recess appointments lasting up to two years. As my colleagues explained, President Obama overstepped his constitutional authority when he appointed three members to the National Labor Relations Board and Richard Cordray to head the Consumer Financial Protection Bureau on January 4.
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Art. I, sec. 5 of the Constitution provides that "[n]either House…shall…adjourn for more than three days" without the consent of the other. The House of Representatives has not consented to a Senate recess. Thus, the Senate is not in recess and the president's purported recess appointments were unconstitutional and unprecedented. On December 17, the Senate began a "pro forma" session, which allows the Senate to conduct its business mostly by agents under unanimous consent procedures. Regardless of the prudence of these "pro forma" sessions, the president is well aware that the Senate remained in session. In fact, on December 23, President Obama signed a bill--the payroll tax cut extension--into law that the Senate passed earlier that day.
[Richard Cordray Recess Appointment Sparks More Bickering.]
Certainly, the Constitution allows for recess appointments, and many presidents have lawfully exercised this power over the years. Our Constitution's Framers likely did not imagine a day when senators could communicate their consent to bills by electronic means or fly to Washington in a few hours. As a result, they provided a mechanism for the president to make appointments during necessarily long recesses. President Obama is not the first to abuse this power. But for nearly a century, the general consensus of all branches of government was that the Senate must be in recess for at least nine to 10 days before the president may make recess appointments. Thus, the Senate has a duty to protect its prerogatives and must not allow President Obama to render its constitutional role meaningless. It is up to the House and Senate to determine whether to stay in session or not, and the president cannot ignore the fact the Congress is in session any time he wants to circumvent a Senate confirmation.
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- Other Arguments
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#113778
No — Constitution is clear on the Cordray matter; the president's actions must not stand
PHIL KERPEN, Vice President for Policy at Americans for Prosperity
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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
