Obama Makes Non-Recess Recess Appointment of Unaccountable Director

President Obama took an end run around the Senate today and made a recess appointment of Consumer Financial Protection Bureau (CFPB) director Richard Cordray. The Senate rejected Cordray's nomination last month.

Senators, mostly Republicans, had objected not to Cordray but to the unprecedented power and lack of accountability given to his office. Thomas Donahue of the U.S. Chamber of Commerce expressed his organization's objections to the CFPB.

We should root out the predatory lending, financial scams, and fraud that poison a competitive marketplace and harm consumers and legitimate businesses. But what’s also important—to economic growth and job creation and to borrowers and businesses acting in good faith—is the availability of credit and capital. The current structure of the CFPB will breed uncertainty, restrict credit, and stifle innovation when we need it most.

The fixes are obvious and necessary.

Donahue spells out the flaws in the CFPB - the unaccountable director in charge of a massive budget and the incredible powers to institute regulation without regard to its impact on other regulatory agencies or the health of regulated companies or the economy.

Until those fundamental flaws are fixed, the president should stand down.

But the President did not stand down and Donahue has also updated his column with a strong condemnation of the move. The President pressed ahead, in defiance of the wishes of the Senate and, possibly, more.

As White House press secretary Jay Carney tweeted,

In Cleveland, POTUS just recess-appointed Richard Cordray to be consumer watchdog. When Congress won't act, POTUS will. We can't wait.

Possibly, even in violation of the law.


The Constitution provides procedures through which the President may make appointments of officers who normally need approval of Congress while Congress is in recess. Presidents have employed this power on many occasions, both to keep the government functioning while Congress is on recess and to make temporary end runs around Congress for controversial nominees. John Bolton's recess appointment as Ambassador to the United Nations after the Senate refused to bring his nomination to a vote is one example of George W. Bush using this power. Democrats have expressed their strenuous objections to Republican Presidents using recess appointments in the past.

The difference this time is that Congress is not in recess. When Bush was President and Democrats controlled Congress, the Democrats kept Congress in a pro forma session in order to avoid a recess that would have triggered Bush's power to issue recess appointments. Ever since, whenever at least one house of Congress is controlled by the opposition party to the President, that party has used this procedure to block recess appointments.

Democrats did it when Bush was President, Republicans now do it when Obama is President. Would the Democrats who now support Obama making this appointment have screamed if Bush had done so? Of course they would have.

There is also some question as to whether the law that created the CFPB allows the director to be appointed through a recess appointment. But, through his statements and actions, the President has indicated that he's going to make maximum use of his authority and push the envelope of what he perceives his power to be, regardless of the legal niceties or traditions that previous Presidents and Congresses have obeyed.

UPDATE: Former DOJ lawyer Todd Gaziano, now at the Heritage Foundation, calls this appointment a "tyrannical abuse of power."

What is shocking is that the Senate is not in a recess that would allow a recess appointment, and it can’t be under the Constitution, even if many Senators are not in D.C.

The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise. It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred.

Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough—but never less than that.)

The President’s purported recess appointment of Cordray would render the Senate’s advice and consent role to normal appointments almost meaningless.

UPDATE: It's more than a little ironic that the President is ignoring Congress's pro forma sessions to make these recess appointments. The tactic of holding pro forma sessions when Congress would otherwise be in recess to prevent the President from making recess appointments was invented by Democrats when George W. Bush was President as a means of preventing him from doing exactly what President Obama is doing. But now that a Democrat is President he is free to ignore them. One can only imagine the howls of protest from Democrats had Bush ignored the pro forma sessions and simply proceeded to make appointments without Senate approval.