Obama Can Still Make Make A Recess Appointment; Will He?

Richard Cordray

President Obama nominated Richard Cordray to head the Consumer Protection Financial Bureau in July.  Senate Republicans have scuttled the nomination, as they have so many other of Obama's choices for federal posts.  Last month the nomination was successfully filibustered, not because of Cordray's credentials but because the Republicans opposed the agency's mission of protecting consumers from the predatory practices of banks and other financial institutions.  There are rumors that Obama will appoint Cordray today by using a recess appointment which, as explained below, is perfectly legal.  Of course such a move will still draw the Republicans' ire.  But doing so is vitally important not only so that the CPFB can do its work but to show that Obama is willing to stand up to the Party of Nullification and fight for the 99%. 

President Obama Still Has All The Legal Authority He Needs To Make A Recess Appointment Right Now

By Ian Millhiser, cross-posted from ThinkProgress

[Yesterday], a reliable source told ThinkProgress that President Obama will make at least one recess appointment soon. If this report proves accurate, Senate Republicans will inevitably complain that this action violates the Constitution — as they do pretty much every time President Obama does anything. They will be wrong.

Although recess appointments that occur while the Senate is at least pretending to conduct business every three days are rare, they are rare for a very simple reason. Few people in American history have done more to obstruct American governance than Senate Minority Leader Mitch McConnell (R-KY) and his fellow Senate Republicans. As such, it has rarely been necessary for a president to use his constitutionally granted authority to appoint officials during a very short recess.

There are no modern precedents for McConnell-style mass obstructionism, and there is no Supreme Court decision considering how long senators must be out of Washington before recess appointments are allowed. There was, however, a showdown during the Bush Administration over President Bush’s decision to recess appoint Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit. In Evans v. Stephens, that court considered whether Pryor’s appointment was invalid because it occurred during a very short legislative break. This court is the highest legal authority ever to weigh in on the question of whether a break in the Senate’s calendar must last a certain number of days before a recess occurs, and it answered that question with an unambiguous “no”:

The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.

There are a number of well-established precedents demonstrating the president’s authority to make recess appointments during very brief recesses. In 1903, when the first session of the 58th Congress ended, President Theodore Roosevelt made over 160 recess appointments during a recess that lasted only a fraction of a day. Similarly, President Truman twice made recess appointments during recesses that lasted just a handful of days.

A few commentators have suggested that this precedent only applies to what are known as “intersession” recesses — that is, the recess that occurs around the beginning of each new year when one session of Congress ends and another begins. Under this theory, President Obama blew his chance to make recess appointments when he allowed the second session of the 112th Congress to begin at noon today without making any appointments. This argument, however, has no basis in the Constitution itself. As Evans explains, “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause,” and “the main purpose of the Recess Appointments Clause—to enable the President to fill vacancies to assure the proper functioning of our government —supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause.”

Recess appointments during very brief recesses are not common, but they are only uncommon because few if any senators have ever engaged in the kind of systematic and determined effort to prevent America from governing itself that began once Mitch McConnell took over as Senate Minority Leader. McConnell’s rampant obstructionism can be summed up in just one chart:

That chart represents the number of times a cloture motion — a motion seeking to break a Senate filibuster — was filed in every recent Congress. The massive spike at the end, where the number of cloture motions more than doubles, coincides with when McConnell took over as Minority Leader.

Moreover, this twofold increase in cloture votes — from 68 when Harry Reid was Minority Leader to a massive 139 once McConnell took over as head of the Senate’s opposition –massively undershoots the extent to which obstructionism increased under McConnell. Under the Senate’s broken rules, breaking filibusters imposes a crippling delay on the Senate’s business. For this reason, the lion’s share of McConnell’s obstructionism never leads to a cloture vote because doing so would tie the Senate up for days on trifling matters such as a motion to end debate on whether or not to debate a bill. Indeed, it is literally impossible to confirm more than a handful of the president’s nominees if just a small group of senators engage in maximal obstructionism.