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Obama’s Recess Appointment: Unconstitutional?

So far, Senate Republicans have successfully blocked President Obama from making controversial recess appointments by using procedural tactics to keep the Senate technically “in session” during the holidays. But with the political press distracted by the GOP race this week, as John Steele Gordon noted earlier today, Obama quietly broke precedent and appointed Richard Cordray to lead the Consumer Financial Protection Bureau – despite protests from conservatives, who claim the move was illegal:

White House attorneys have argued that Obama has the authority to make the recess appointment after Senate Republicans blocked Cordray’s nomination last month. But opponents of the appointment argue that the Senate is not in recess, painting Obama’s move as a political power grab.

“Today, President Obama decided to bypass the Constitution and the system of checks and balances that have served our country so well,” Heritage Action for America CEO Michael Needham said in a statement. “Rather than heed the advice of the Senate, President Obama decided to embark on an arrogant and unprecedented power grab. This stunning appointment represents a fundamental threat to the balance of powers and the role of the legislature.”

The U.S. Chamber of Commerce is warning the White House it can expect lawsuits challenging the constitutionality of making an appointment when the Senate hasn’t been in recess for longer than three days. Even President Obama’s own Department of Justice defended the three-day rule during a Supreme Court hearing last year, Joel Gherke reports:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Republicans are right to demand structural changes to the CFPB, but holding up Cordray’s appointment in return for reforms wasn’t getting them far. And they probably weren’t going to win that fight in the court of public opinion.

However, the constitutionality of Obama’s appointment is something that should be challenged, especially since it has potentially harmful ramifications. If Obama can appoint Cordray to the CFPB, than he can certainly make appointments to the National Labor Relations Board, as the left is currently haranguing him to do. In fact, the Cordray appointment will only intensify the drumbeat for NLRB appointments. So it’s understandable that Republicans want to block this precedent from taking hold.