Is President Obama Playing Fair? Examining Richard Cordray’s Recess Appointment

President Obama today will give a recess appointment to Richard Cordray to serve as director of the new Consumer Financial Protection Bureau established under Dodd-Frank. With Senate Republicans vowing to oppose any nominee absent structural reform of the CFPB, a Republican filibuster last month blocked the Senate from securing cloture on Cordray’s nomination. Because recess appointments last until the end of the “next session,” Cordray’s appointment would last until the end of 2013.

Republicans immediately cried foul, with Senate Minority Leader Mitch
McConnell arguing that the recess appointment “threatens the
confirmation process and fundamentally endangers the Congress’s role in
providing a check on the excesses of the executive branch.” Speaker
John Boehner called the move a “power grab,” and McConnell warned that
the move took the White House into “uncertain legal territory.”

Republican consternation stems from the nature of the intra-session
recess during which the president made the appointment.  Using a tactic
developed by Democrats during the second Bush administration, House and
Senate Republicans refused to officially recess between the first and
second sessions of the current Congress. Instead, the Senate has
scheduled “pro forma” sessions every fourth day. Why every fourth day?
Republicans maintain that unless an intra-session recess lasts longer
than three days, it is technically not a “recess” and thus the president
can’t exercise his Constitutional power to make recess appointments
(circumventing Senate confirmation). The source of the “three day” rule
turns out to be a Justice Department opinion issued in 1993 during the
Clinton administration.

So did the president play unfairly during recess? Is the
appointment on tenuous legal ground? Although Republicans will likely
challenge the appointment in court, it’s hard for me to see the Cordray
appointment as more than an aggressive use of executive power in face of
the opposition’s foot-dragging over confirming a nominee to the CFPB.
The Constitution doesn’t define what constitutes a valid recess for the
purpose of the president’s proper exercise of the recess appointment
power, leaving it open to interpretation.  And the most recent court
case on the matter—when Democratic Senator Ted Kennedy challenged the
intra-session recess appointment of William Pryor to the 11th Circuit
Court of Appeals in 2004—upheld the right of the administration to make a
recess appointment on the 7th day of a ten day intrasession recess,
noting the Constitutional ambiguity of a “recess.” (The Supreme Court
declined to take up the case.)  Nor does the longer historical record
help us much in evaluating the president’s exercise of the recess
appointment power.   Intra-session recesses were rare before the 1940s
given the structure of the Congressional calendar for much of the
Congress’s history. Presidents from both parties have made
intra-session recess appointments, and they’ll continue to.

Finally, it’s important to keep in mind why the White House is so
eager to put a director in place. Certainly it fits the president’s
electoral strategy of championing the rights of consumers as an advocate
of the middle class and painting the GOP as a
defender of dishonest financial lenders. But there’s a policy
incentive to install Cordray as well. Under Dodd-Frank, new consumer
protection powers can’t be exercised by the CFPB
until a Senate-confirmed director is in place. Not to be too cynical,
but does a recess appointee legally meet the definition under the law of
a confirmed director? I sense a second legal challenge brewing.