Recess Appointments Ruled Unconstitutional

In January 2012, the U.S. Senate did not adjourn after the holidays. Instead Republican senators remained in session in order to deny President Barack Obama the opportunity to make a “recess” appointment of Richard Cordray to head the new Consumer Financial Protection Bureau (CFPB). Republicans, and banking industry advocates, were seeking and continue to seek changes in the structure of the CFPB. These changes would: (1) establish a five-person governing board vs. having all power vested in the appointed director, and (2) require that the CFPB be subject to budget oversight by Congress, as are all other government agencies and bureaus.

Ultimately Obama went forward with recess appointments of three National Labor Relations Board members, and he appointed Cordray as director of the CFPB. Nearly every president, without question, has made recess appointments. These powers are provided to the president to keep government functioning in the absence of Congress’ being in session; however, these recess appointments have restrictions as to their duration. If Congress is in session, then those presidential appointees are required to be confirmed by the Senate, for longer periods of time.

The question, then, was whether President Obama had the power in January 2012 to make those recess appointments, since technically the Senate had not adjourned. Hence there was no recess.

A suit was filed in court against the appointment of the three National Labor Relations Board members, questioning the president’s power to appoint them while the Senate remained in session. Last week a Washington DC appeals court ruled that those recess appointments violated the U.S. Constitution. Now Republican Senators are calling upon all four of the appointees — the board members plus Cordray — to resign immediately. Questions are arising daily regarding the legality of decisions made by those four individuals.

Although Richard Cordray was not named in the suit, the power that he assumed was extensive. This issue will likely be debated for some time before all of the answers are determined, as the questions are enormous. If the CFPB has been acting unconstitutionally, and if Cordray’s decisions are nullified, it will be fascinating to see how they put the toothpaste back in the tube!

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