In what is certain to escalate a long-going political battle, and which may also invoke a constitutional debate, President Obama announced yesterday that he was appointing Richard Cordray as director of the Consumer Financial Protection Bureau. That’s the agency created this past summer under the Dodd-Frank legislation and charged with protecting consumer interests in financial transactions such as mortgage lending. Not coincidently, Obama announced this appointment while on a campaign stop in the key battleground state of Ohio.
Cordray’s appointment is controversial because it is designed to sidestep the Senate confirmation process. Under the Constitution, presidents are allowed to make “recess” appointments – that is, appointments to positions that would normally require Senate confirmation, but which can be filled on a temporary basis if the Senate is not in session. Article II, section 2, clause 3 of the Constitution states: “The President shall have 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.” At the nation’s founding, of course, it was assumed that Congress would be, in effect, a part-time legislative body, with long periods in which legislators would not be in Washington. And that was true as late as the end of the 19th century; Congress typically was in session less than half a year. Giving the president this recess appointment power, then, made perfect sense.
The two key words in this clause, of course, are “recess” and “session”. Regarding the latter, a session is usually defined as ending when the Senate adjourns without specifying a return date. Pursuant to the 20th amendment, Congress now meets annually beginning Jan. 3, and so the Senate session usually begins on that date and extends to the fall or early winter when Congress adjourns. So, consider a typical congressional session as lasting about nine to 12 months. That means under this recess clause the president can appoint an individual to an executive branch position during this intercession period (after the Senate has adjourned but before the next session begins on Jan. 3), and that that individual would remain in that post until the end of the next Senate session – that is, until the end of the upcoming Senate session. (The fact that it extends through the upcoming Senate session is important in understanding the timing of Obama’s decision to appoint Cordray yesterday, as we will see in a moment.) Most recess appointments through the 1940’s took place during this intersession period, and were viewed as well within the President’s authority. In fact, Theodore Roosevelt once handed out more than 100 military commissions using his recent appointment power during a one-day break between congressional sessions.
However, in recent years, as Congress has stayed in session for longer periods (the advent of air conditioning was a huge influence here) they have also increasingly resorted to taking breaks within a congressional session; for example, the Senate might break for 3-5 days for a holiday weekend. In response presidents have responded by using these shorter intrasession recesses to also make appointments without Senate confirmation. And that’s where the controversy begins. Simply put, how long must the Senate be in recess in order for a President to make an intrasession recess appointment? Without taking you through the entire legal history, the most recent Justice Department memorandum of which I am aware said, in 1993, that a recess was defined as any period longer than three days. Why? Because under the Constitution (Article I, Section 5, clause 4) neither the House nor the Senate may take a break of more than three days without the consent of the other chamber. So, following this reasoning, a break of three days or less is not, by definition, a recess, and therefore presidents cannot make appointments during such a short period. So the Justice Department advised in its 1993 memorandum (although not every agreed then) and there things stood until the George W. Bush presidency.
Like presidents before him, Bush made vigorous use of his recess appointment power, but his efforts proved particularly controversial when he sought to use this power to appoint federal court judges while the Senate was in intrasession recess. This included the appointment of William Pryor to the federal bench while the Senate was recessed for a 10-to-11-day period in 2004 – a controversial act since previous presidents had almost never used intrasession recess appointments to seat federal judges. Bush’s action resulted in a court challenge. In the case of Evans v. Stephens, a U.S. Court of Appeals upheld Pryor’s appointment as in accord with the Constitution., saying: “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.”
Note that the appeals court did not specify how short a recess was – it only said that the period during which the Pryor appointment was made constituted a recess, constitutionally speaking. And so the issue of how to define a recess remains unsettled today. However, when the Democrats regained a Senate majority in 2007 Senate Majority Leader Harry Reid – guided in part by the logic underlying the 1993 Justice Department opinion that said a recess must be longer than three days – instituted a controversial practice designed to prevent Bush from making any more intrasession recess appointments. Simply put, beginning during Thanksgiving break in November, 2007, through the end of Bush’s presidency, the Senate never went out of session for longer than three days! Although it would conduct no business, Reid made sure that the Senate remained in a pro-forma session (except for the intersession period between the end of 2007 and the next session in 2008) by conducting short meetings. And Bush never challenged that action by trying to make a recess appointment.
Flash forward to 2011. Senate Republicans, who have long sought to restructure the CFPB to make it more amenable to congressional control, have prevented Obama from appointing anyone to head this agency until the President agrees to their changes. And, following Reid’s precedent, they have kept the Senate in pro-forma session to prevent the President from making a recess appointment. Lacking a director, the CFPB cannot exercise its new powers on behalf of consumers.
Yesterday, the President threw down the constitutional gauntlet and decided to appoint Cordray despite the fact that the Senate was not, at least based on the Clinton-era opinion, in recess. He did so by arguing that the Senate was not in session because, in effect, it wasn’t actually engaging in any activities. According to the White House blog: “The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks.” Based on this logic, the Senate hasn’t really been in session since adjourning to end the last session last year.
However, if we believe that the Senate has convened a new session as of Jan. 3, then this is an historically unprecedented action – no prior president has made an intrasession appointment in any recess shorter than 10 days (although, as noted above, there have been shorter intercession recess periods in which appointments were made.)
Note that Obama could have taken the potentially less controversial route and appointed Cordray during the intersession period, before the Senate reconvened this past January 3rd. That may have given him a stronger legal claim, but it also would have meant that Cordray would have only served until the current Senate adjourned next fall. By waiting until the current Senate began meeting, and making the more controversial intra-session appointment, Cordray can now serve through the following Senate session, in effect keeping Cordray in power through 2013.
So, given the controversy, why did Obama decide to do this now, in the most controversial manner? And what is likely to happen next? Note that progressives who normally support the President are very uneasy with Obama’s decision. After assailing President Bush for running roughshod over the Constitution by his expansive use of recess appointments, they now find Obama once again following in Bush’s footsteps. Indeed, several former Bush legal aides have come out in support of Obama’s decision to make Cordray a recess appointment.
My guess is that this decision will invoke a legal challenge. But I also think that a focus on the constitutional issue misses why Obama has picked this fight, at this time. This is really a political dispute more than a constitutional one. If Obama had wanted to operate on stronger constitutional ground, he could have appointed Cordray before the start of the current Senate session. But I don’t think he’s worried about the legal issues here – he is focusing on the upcoming election. Note that it was no accident that he made the announcement before a raucous crowd in a campaign rally in Ohio – perhaps the key battleground state come November. Obama’s purpose is not to break new constitutional ground – it is to position himself as an advocate for the middle-class consumer, one who suffered mightily at the hands of the big banks during the mortgage-induced housing collapse. He may end up losing this on constitutional grounds – indeed, I think he has a weak case. But if the Supreme Court rules against him – all the better on political grounds. Following on the heels of the Citizens United decision, it will simply reaffirm the sentiment shared by many that the Court is too protective of moneyed interests, and out of step with the times.
There is some risk to this strategy. Should Obama lose a court ruling, he will have constricted the president’s appointment power, leaving a legacy of a slightly diminished office. But that hardly matters to him now. This is all about election-year politics. Judged on that basis alone, I think this probably is a smart move. Voters are going to look at the practical implications of this appointment, not the constitutional ones. And for Obama, at this point, that is all that matters.