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An Unconstitutional Appointment to an Unconstitutional Office

12:35 PM, Jan 5, 2012 • By ADAM J. WHITE
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Normally, the Constitution requires the president to secure Senate confirmation before appointing cabinet secretaries and equivalent officers to lead federal agencies. But the Constitution carved out one exception to that rule: The president may appoint such an officer without Senate confirmation when the Senate is in recess. 

Richard Cordray

Richard Cordray

And that’s why President Obama’s announcement yesterday that he would use his “recess appointment” power to install Richard Cordray as the first director of the Consumer Financial Protection Bureau, a new agency created by last year's Dodd-Frank Act and vested with effectively unlimited power to regulate and punish lenders, is so controversial. The Senate is not in “recess” for purposes of the Appointments Clause.

In fact, the Senate has refused to recess precisely to deny the president the ability to evade Senate confirmation requirements for Cordray and other nominees.  Rather than recessing, the Senate has been careful not to adjourn for more than three consecutive days. That was in accordance with Congress’s and the President’s longtime understanding that no “recess” occurs, for purposes of the Constitution's Appointments Clause, when an adjournment lasts three days or less.

This three-day cycle is not a novel GOP creation; it was established long ago, and used most recently by Sen. Harry Reid to avoid a recess during the last years of the Bush administration. (And during President George W. Bush's term, by contrast, recess appointments never occurred during breaks of less than ten days, consistent with the three-day definition of “recess.”) The Obama administration’s deputy solicitor general reiterated the Justice Department's longtime understanding of this definition of “recess” in a 2010 Supreme Court oral argument involving the NLRB (an agency that, as it happens, also received “recess” appointments yesterday).

Some argue that the Senate's non-recess strategy inappropriately “serve[s] but one purpose: to prevent the president from exercising his constitutional authority to make recess appointments.” Two well-respected Bush administration veterans, Steven Bradbury and John Elwood, made that argument in a Washington Post op-ed last year. Bradbury and Elwood are two of the GOP's very finest lawyers, and both executive branch veterans, but in this case they are putting the cart before the horse. The Senate isn’t inappropriately blocking the president's exercise of powers to which he is entitled—the president is inappropriately blocking the Senate from deciding when to go into recess, and when not to. Only once the Senate has actually gone into recess does the president's recess-appointment power actually vest.

Faced with this constitutional problem of asserting that a “recess” has occurred contrary to the longstanding interpretation of what a “recess” is, the White House's response has been that, although the Senate has not formally been in recess, “[t]he Senate has effectively been in recess for weeks.” The absurd results of that argument quickly become apparent.  If the Senate is “effectively” in recess during a few slow winter weeks, just because most of the Senators left town, then when else is it in “effective” recess? On the weekends? At night?

And one branch’s powers can be triggered by another branch’s “effective” actions in the recess-appointment context, than what about other constitutional provisions?  Could the Senate announce that the president has “effectively” nominated a judge or ambassador, and then confirm him? Could the Senate announce that the president “effectively” made a treaty, and then ratify it? Of course not. In each of those cases, the president would prove the absence of a nomination or treaty by pointing to the absence of the formal trappings of either. Whether or not the Senate thinks a judge has “effectively” been nominated, in the end only formal actions count.  There are no “effective” nominations, and there are no “effective” recesses.

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