Legal experts say the Obama administration is likely on firm ground with a legal opinion defending its recess appointment of Richard Cordray to be the director of the Consumer Financial Protection Bureau, despite recent calls by Senate Republicans to push for a court fight.
"I think this is a credible opinion," says Michael Gerhardt, a constitutional law professor at the University of North Carolina who's written about presidential power. "I think the courts would probably have a burden to explain why they don't agree with it."
Obama nominated Cordray to be the first director of the newborn agency, but his Senate confirmation was derailed by a persistent filibuster from Republicans, who claimed their objection was to the agency's powers, not Cordray himself. A series of minutes-long "pro forma" sessions through the winter break was supposed to stop Obama from using his recess powers to appoint Cordray—but the president put him in the vacant position, anyway.
A Jan. 6 opinion from the Justice Department claims the pro forma sessions didn't prevent a recess from occurring. In a legal sense, Congress was in recess because it wasn't conducting any real business, the administration argues. It also quotes several GOP senators informally referring to such periods as a recess to bolster its claim.
Georgetown University law professor Susan Bloch says that because the Senate explicitly said it wouldn't conduct business during its session, a court is likely to agree that it doesn't break the recess.
"The Senate is doing something somewhat novel and obstructionist, and the president is coming up with new tools to deal with this," Bloch says. "I think probably all of them are in the constitutional framework. They're not good government, by the way, but they're probably constitutional."
The opinion will likely set a precedent which will be used by future presidents, and could change how Congress deals with recesses. But if there's a legal challenge—either by Congress or by banks which will be regulated by Cordray—the courts may choose not to get involved in a fight between the president and Congress.
"This is just political hardball on both sides," says Douglas Laycock, a law professor at the University of Virginia. "The courts would do well to stay out of this, and let the political branches fight it out."
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