Mike Kueber's Blog

January 10, 2012

Recess appointments by President Obama

President Obama recently created a ruckus when he made four “recess” appointments, especially his appointment of Richard Cordray as head of the Consumer Financial Protection Bureau (a major creation of the Dodd-Frank law).  According to Rush Limbaugh, the appointments were tantamount to “peeing on the constitution.”  A columnist in the Washington Post, however, argued that Obama was forced to take this unprecedented action because obstructionist Republicans in Congress were refusing to confirm anyone to essential positions.    The Post columnist Ezra Klein opined that the recess appointments were justified because the Republican obstructionism was comparable to “nullification,” which was discredited in 1833.

Nullification was an attempt by a state to disregard a federal law that it disagreed with.  According to Klein, the Republicans’ refusal to act on 204 nominations is tantamount to nullification and deserves to be discredited by recess appointments.  But he notes that the problem with recess appointments is that a “recess appointee can stay only until the end of the next Senate term — in this case, the end of 2013 (2012?). A traditionally confirmed appointee to the Federal Reserve’s board gets 14 years, and a judge gets a lifetime appointment.”

Initially, I wasn’t sure what this brouhaha was all about or why Limbaugh compared a recess appointment to peeing on the constitution.  Contrary to his assertions, the U.S. Constitution, Article II, Section 2, specifically allows recess appointments:

  • The President shall have the power to fill up all Vacancies that may happen during a Recess of the Senate, by granting Commissions which shall expire at the End of the next Session.”

But upon reading further, I learned that the provision in the Constitution for recess appointments was adopted at a time when Congress often recessed for periods of six to nine months.  Thus, a recess appointment was needed to avoid extended vacancies in important offices.  Because Congress no longer takes extended vacancies, the initial rationale for recess appointments has disappeared.

In fact, Congress has attempted to preclude recess appointments by remaining in session indefinitely, and that is what caused the recent controversial Obama appointments.  According to Wikipedia:

  • On January 4, 2012, Barack Obama used recess appointment authority to appoint Richard Cordray to serve as head of the Consumer Financial Protection Bureau. The House of Representatives had refused to recess for the winter break, specifically to block Cordray’s appointment.  Both the House and Senate had been holding pro forma sessions during the break. White House Counsel Kathryn Ruemmler asserted that the appointment was valid, because the pro forma sessions were designed to, ‘through form, render a constitutional power of the executive obsolete,’ and that the Senate was for all intents and purposes recessed.  Republicans in the Senate hotly disputed the appointment. Senate Minority Leader Mitch McConnell said that Obama had ‘arrogantly circumvented the American people’ with the appointment. It was expected that there would be a legal challenge to Cordray’s appointment.”

Once again, Wikipedia comes through with an exceptionally understandable explanation of an esoteric subject.  That makes me feel justified in recently making a significant monetary contribution to Wiki.  

An op-ed by Senator Chuck Grassley in USA Today, in condemning the appointments, provides a bit more historical background:

  • Going back to 1921, attorneys general have stated — in advice to presidents and in legal filings in federal courts — that a recess appointment may only be made during an actual recess, one that is at least three days long.”

According to Grassley, “President Obama’s appointment of Richard Cordray to head the Consumer Financial Protection Bureau is unacceptable because it violates both the letter and spirit of the Constitution.”

I agree with Grassley – President Obama is defying the constitutional separation of powers.  And, as is often the case, Rush actually made a good point, albeit in his distracting, flamboyant style.