President Obama did not exceed his powers as president Wednesday when he made a recess appointment of Richard Cordray to lead the Consumer Financial Protection Bureau.
There are many actions Obama has taken during his presidency that stir grave concern about presidential overreach and how Obama might use his executive powers if he is reelected. Wednesday’s appointment was not one of them.
The Senate claims it is in session. But the Senate is not in session. It is pretending to be in session merely for the purpose of thwarting a Constitutionally-prescribed power of the president.
Based on the long accepted definition of the “Recess Appointments Clause” of the Constitution, the president has the right to make appointments without the “consent” of the Senate if the vacancy exists when the Senate is in recess.
The Senate has been “convening” every three days to for about 15 seconds to technically keep itself out of recess. A recess, according to the currently accepted legal definition, must last at least three days.
This cuteness was actually begun by the Democrats as a way to prevent George W. Bush from making recess appointments. The problem is, the maneuver is so easy to accomplish that it could EFFECTIVELY ELIMINATE RECESSES ALTOGETHER, thereby eviscerating a right outlined in the Constitution for the president make recess appointements.
Obama, by appointing Cordray, was correct to challenge the Constitutionality of the Senate’s actions. The Senate is engaged in a highly questionable tactic, and Obama is by no means exceeding his power by challenging it.
In case you are wondering whether somehow the Senate might actually be in session, here is one of those “sessions.”
That was the full session.
Now, here’s where my opinion gets a little tricky. This is the the Recess Appointments Clause:
The President shall have the power 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.
To me, and to some legal scholars, this clearly refers to vacancies that open up while the Senate is in recess. The intent, in my view, was to make sure the government could continue to govern while the Senate was out town for nine months, like it would be during the 1700s. The intent was not to let the president make an appointment when Congress leaves for a couple of weeks in August or to go roast its hams for Christmas.
But the precedent that prevails was established by a ruling by the attorney general in 1823 which defined “happen” as “happen to exist” rather than the more natural meaning of the word, “happen to occur.” Since then, it has been held – incorrectly, I think – that any vacancy that exists while Congress is in recess can be filled unilaterally by the president. Therefore Obama and other president have routinely made recess appointments to fill vacancies that exist while Congress is in recess, but which might have opened up while Congress was in session.
Precedent is something given great weight in Constitutional matters, and I don’t feel I can opine easily on whether nearly 200 years of legal custom should be overturned.
But I can say with conviction, as even the former chief of Bush’s Office of Legal Counsel and another Bush OLC official have said, that Obama under the widely accepted interpretation of the law is correct, and the Senate is not.
H/T to The Volokh Conspiracy, the conservative legal blog where I found some of the information for this piece.