In a controversial, more-than-likely unconstitutional move, President Obama attempted to use a "recess appointment" to put Richard Cordray in place as the head of the Consumer Financial Protection Bureau.
The questionable appointment is likely to be challenged in court since the Senate is not actually in "recess."
David Freddoso at the Washington Examiner writes:
Article One, section Five of the Constitution states:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days...
This presents a problem for President Obama, who claims to have just made a recess appointment when the Senate is not actually in recess. The Constitution says the Senate cannot recess for more than three days without the House's permission. The House has not granted permission, and as a result both houses have been holdingpro forma sessions out of constitutional necessity.
The CFPB was created by a provision in the Dodd/Frank bill and is completely housed and funded by the Federal Reserve with no oversight or appropriations power for Congress. The lack of oversight or appropriations power likely had something to do with the Senate Republicans voting en masse against Cordray's nomination right before Christmas.
News of Obama's appointment was immediately met with backlash from members of Congress who challenged the President's authority to conduct a "recess appointment" without the House having consented to the Senate being in "recess."
Jim Antle tweeted his observation, one that likely sums up the White House legal advisors opinion on the matter:
If you are not a stickler about what the Constitution says about anything else, you are probably not going to worry about recess definition.
And there's plenty of "anything else" the White House doesn't care about in the Constitution, especially with regard to Congress' authority over warmaking (Libya, drone wars), the Bill of Rights ("Patriot" Act, NDAA), etc. Compared to those flagrant violations of the Constitution, ignoring the Senate's "advice and consent" powers almost seems minute.
One interesting note pointed out by Mark Calabria of the Cato Institute:
The Dodd-Frank Act is very clear, even a law professor can probably under this section, that authorities under the Act remain with the Treasury Secretary until the Director is “confirmed by the Senate”. A recess appointment is not a Senate confirmation. Now don’t ask me why Dodd and Frank included such unusual language, they could have just given the Bureau the new authorities, but they didn’t. So even with this appointment, the CFPB won’t be able to go after all those non-banks, like the pay-day lenders and check-cashiers that caused the financial crisis (oh wait, those industries didn’t have anything to do with the crisis).
UPDATE: In addition to Cordray, Obama also just announced the appointment of 3 members to the National Labor Relations Board.
Perhaps the most ironic part of this all is that in a 2010 Supreme Court case, the DOJ Counsel for the White House argued they hadn't filled vacancies to the NLRB because "I think our office has opined the recess has to be longer than 3 days."
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