Obama Oversteps His Limits with Cordray Recess Appointment

Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers by making a recess appointment for Richard Cordray (whom I respect and have no problems with as a nominee) to head the new Consumer Financial Protection Bureau. Any private party can challenge this nomination by refusing to obey any regulation issued by the agency as the act of an unconstitutional officer. As a result, this may be the first time that Richard and I get to represent someone in court together!

Here we go into the fun world of federal personnel law (which is what lawyers in the Justice Department spend a fair amount of time upon). The President’s power over what are known as “recess appointments” stems from Article II of the Constitution, which grants him the authority “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Constitution does not define what a “recess” is — the Senate adjourns for short periods of time, and the question becomes when an “adjournment” becomes long enough to turn into a “recess.” In the past, Attorneys General and Presidents have thought that an adjournment would have to be longer than at least 10 days to become a “recess.”

But President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held “pro forma” meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional “recess.” Rather, Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on.

This, in my view, is not up to the President, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having Senators sitting around on the floor reading the papers. The President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.

Is the President going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the President has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the Senators are not working as hard as he did in the Senate (a fairly low bar).

Even with my broad view of executive power, I’ve always thought that each branch has control over its own functions and has the right — if not the duty — to exclude the others as best it can from its own decisions. The Senate can make sure that its rights are respected by refusing to provide any support or legislation to the agency, conducting tough oversight hearings, and enacting repealing legislation at every opportunity. It can also use non-formal means such as hearings, appointments, and funding of related agencies to impose a high cost for Obama’s act.

Most importantly, private parties outside government can refuse to obey any regulation issued by the new agency. They will be able to defend themselves in court by claiming that the head of the agency is an unconstitutional officer, and they will have the grounds for a good test case. They can call Richard first, me second, for advice!

  1. Mel Foil

    I guess we can be glad that Obama is only starting political wars here at home. Sometimes national leaders with his level of popularity will start a foreign war, a shooting war. I expect even more of these invented showdowns with Republicans in Congress. He has to do something to get his base fired up. Golf outings don’t do it.

  2. AmishDude

    Barack Obama is an expert in Constitutional Law in the same way that Willie Sutton was an expert in bank security.

  3. Matthew Gilley

    Crow’s Nest beat me to it – Obama didn’t just stop with Cordray.  He also recess appointed three new members of the National Labor Relations Board.  That’s a big deal in my line of work, and we’ve just come through one round of Supreme Court litigation defining a quorom of the Board.  Now we’ll certainly see another round with the added layer of what constitutes a Congressional recess.  Even more galling, the Washington Times reports that President Obama responded in part, “I refuse to take ‘No’ for an answer,” when asked to explain Cordray’s appointment.

  4. Bryan G. Stephens

    He will get away with it and nothing bad will happen because the Democrats care only about power not what is legal and the press will support them and the GOP are wimps.

  5. Guruforhire

     Would it not also be a crime to pay him?

  6. Robert E. Lee
    John Yoo: Some think me a zealous advocate of executive power, and often I am when it comes to national security issues.

    Is there a limit to executive power?  He could conceivable call these appointments a matter of national security.  Are there really any limits to what he can legally do under the cover of national security when he is the ultimate arbiter of what is or isn’t national security?

    To put it more plainly, are there limits on the president’s power WITHOUT exception, without a loophole he can crawl through?  If there are limits he oversteps his bounds, who calls him to task for it? 

  7. Rodin

    Oh no, not “high crimes and misdemeanors” again!

  8. NormD

    Is your objection to recess appointments in general or these specific appointments?

    Should the Senate be allowed to never go into recess (even when no one is there) and thus prevent all recess appointments?  This will work against both parties.

  9. Tim Groseclose
    C

    John, great post.  I really appreciate your expertise.  Thanks for writing about this.

  10. Fred Cole
    etoiledunord: I guess we can be glad that Obama is only starting political wars here at home. Sometimes national leaders with his level of popularity will start a foreign war, a shooting war. I expect even more of these invented showdowns with Republicans in Congress. 

    Except when he started a foreign war, without even trying to get congressional approval, Congress utterly failed to act and Republicans tripped over themselves to approve of it.

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