The AP is reporting that President Obama intends to use a recess appointment today to name Richard Cordray as head of the Consumer Financial Protection Bureau.
This is a considerable escalation of the war between the White House and the Senate over recess appointments that I wrote about in Contentions in 2010, because the Senate is not in recess. The Constitution requires that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives has not given that consent and has been holding pro forma sessions every three days, forcing the Senate to do likewise. When Democrats controlled the Senate in the last two years of the Bush administration, they held these pro forma sessions during recesses precisely to prevent President Bush from using the recess appointment power, which he didn’t.
According to the Congressional Research Service, the Clinton Justice Department decided in 1993 that this practice effectively prevents recess appointments:
The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This Adjournments Clause provides that Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated: “If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. … It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.”
There is little question the Framers created the power of recess appointments for use in the long periods of time when Congress was out of session in the early years of the Republic. (Until the 20th century–and air conditioning–Congress was rarely in session for more than six months, convening in early December, and adjourning before the Washington summer descended upon the city.)
The AP laconically notes that “Obama’s decision to make a recess appointment is certain to cause an uproar from Capitol Hill to Wall Street. He is essentially declaring the Senate’s short off-and-on legislative sessions a sham intended to block his appointments.” They are, of course, a constitutional sham, a sham designed to prevent the president from abusing the power to make recess appointments.
It will be interesting to see if a court challenge develops. Courts hate getting in the middle of a dispute between the other two branches. But is the president not arrogating to himself the power to decide when Congress is in recess? If he has that power, what else can he dictate to Congress?