Playing nice during recess
“You know, you look at him and you think, this guy’s not somebody who’s going around picking fights”
— President Obama
on Rich Cordray
“This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer.”
— Sen. Mitch McConnell
President Obama was in Ohio this week, speaking in the Cleveland area about the state of the nation’s economy. He surprised reporters (and no doubt Congressional Republicans as well) when he announced that he was appointing former Ohio Attorney General Richard Cordray as head of the new federal consumer financial protection bureau.
Obama had previously nominated Cordray to the post, but the nomination never came to a vote in the U.S. Senate. Instead, the President installed Cordray to the post temporarily through what has come to be known as a “recess appointment.”
Under the provisions of Article II, section 2 of the United States Constitution, the President has the authority 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.” Little is said in the original writings of the Founding Fathers about the specific way in which this power was to operate. What is clear is that the manner in which Congress meets is far different in today’s world of airline travel than it was in the late 18th Century. Congressional recesses were significantly longer in those days and the provision allowing recess appointments prevented government offices from being vacant for long periods of time.
Recess appointments are not rare. In his eight years in office President Clinton made 139 recess appointments. In his eight years, President Bush made 171. Cordray is the 29th recess appointment made by President Obama. The question of just what constitutes a ‘recess’ and a change made in the way recesses are taken during the Bush administration make the recess appointment of Cordray one to take notice of.
The Constitution does not specifically define a ‘recess’ nor does it say how long a recess has to be in order for the President to make appointments during it. What the Constitution does provide is that neither House of Congress can be in recess for more than three days without the permission of the other House. In 2007 Sen. Harry Reid stated that the Senate would simply not go into recess in order to prevent President Bush from making recess appointments. According to the Congressional Record, Sen. Byrd had threatened the same tactic during the Reagan administration and Republican Senators had made similar rumblings in the Clinton years.
For the last two years of Bush’s Presidency, the Senate held pro forma sessions in which short meetings were held but no substantive business was conducted or votes taken. Because of this, according to the Congressional Research Service, President Bush made no recess appointments from November 2007 until the end of his term in January of 2009. The Department of Justice none the less concluded that the President could make a recess appointment during any recess of three days or more.
Turning the political tables, the House of Representatives has recently refused to pass concurrent resolutions to allow the Senate to go into formal recess. As such, the Senate has been holding pro forma sessions over the holidays in order to avoid violating the Constitution by recessing without the approval of the House. Apparently concluding that these pro forma sessions are not formal sessions, the President has made the recess appointment of Cordray.
Senator Minority Leader Mitch McConnell said Wednesday, “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer.” He’s partially right. Cordray’s appointment is certainly a departure from precedent, though he has his number of days wrong. Still, appointments during a recess of less than three days are not entirely unheard of. In 1949 President Truman made an appointment to the Civil Aeronautics Board during a shorter recess and in 1903 President Roosevelt made more than 150 military appointments during a recess that lasted just a few hours.
Cordray’s appointment will last until the “next session” of Congress is over. The next session begins on Jan. 23 and will end sometime in December. The appointment essentially lasts, therefore, until just a few weeks before the end of the President’s term of office. Whether any action is taken to challenge the appointment remains to be seen.
David Hejmanowski is a Magistrate and Court Administrator of the Delaware County Juvenile Court and a former Assistant Prosecuting Attorney.