Were Obama's Recess Appointments Legal?

Illustration for article titled Were Obama's Recess Appointments Legal?

President Obama visited the Consumer Financial Protection Bureau on Friday, giving a pep talk on the work that lies ahead.


"Every one of you here has a critical role to play in making sure that everybody plays by the same rules," Obama said of the agency, created under 2010's financial regulatory reform bill to hold banks and other financial firms accountable for unfair or deceptive practices. "To make sure that the big banks on Wall Street play by the same rules as community banks on Main Street. To make sure that the rules of the road are enforced, and that a few bad actors in the financial sector can't break the law, can't cheat working families, can't threaten our entire economy all over again."

The president swung by the bureau days after appointing Richard Cordray its director, along with installing three members to the National Labor Relations Board, amid objections from Senate Republicans who had blocked Cordray's nomination last month.

From the administration's perspective, Obama was within his constitutional authority to bypass congressional obstruction, unilaterally making recess appointments during Congress' winter break (which lasts until Jan. 23 for the Senate). Senate Republicans argue, however, that the installations were not true recess appointments because they'd set up "pro forma" meetings to technically keep the Senate in session.

But the Obama administration is calling the GOP's bluff. According to White House Communications Director Dan Pfeiffer:

Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called "pro forma" sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President's constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham "pro forma" sessions to prevent the President from exercising a constitutional power.

Armed with their own fightin' words, the GOP has come back swinging. In an official statement, Senate Minority Leader Mitch McConnell wrote:

Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people by "recess" appointing Richard Cordray as director of the new CFPB. This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer. Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress's role in providing a check on the excesses of the executive branch.


With neither side budging, the courts may weigh in next.

"The only court that would take it up would be the Supreme Court, and there's a lot of reason to believe that the Supreme Court would side with Obama," David Bositis, senior research associate for the Joint Center for Political and Economic Studies, told The Root. "Even though they're not liberal, they tend to side with executive privilege. The Republicans' argument of ‘We're not really in recess' sounds like they're trying to take Obama's power of making recess appointments away from him. My guess is that the Supreme Court would tell Congress, 'Screw you.' "


Do you think the president's appointments were legal?

Cynthia Gordy is The Root's Washington reporter.