President Obama, not surprisingly, was not at all pleased with Senate Republicans blocking a vote on Richard Cordray’s CFPB nomination this morning, and he told White House reporters, “We are not giving up on this; we’ll keep on going at it.”
Asked specifically about the possibility of a recess appointment, Obama added, “I will not take any options off the table when it comes to getting Richard Cordray in as director of the Consumer Finance Protection Board.”
At this point, the natural next question is, “How can there be recess appointments if there are no recesses?”
Congressional Republicans, hoping to prevent the president from filling key government posts with qualified officials, decided earlier this year to simply end recesses, mandating pro-forma sessions every third day that would prevent vacancies from being filled. Indeed, as far as GOP leaders are concerned, they intend to keep this going for the indefinite future, even if Obama gets a second term.
And with this in mind, what difference does it make if the president isn’t willing to take a recess appointment “off the table”? Well, as Jonathan Bernstein explained, there may be more alternatives than appear at first blush. In fact, as Bernstein sees it, Obama has three options:
1. Make a recess appointment during a short recess. The three-day minimum for a recess to “count” for purposes of recess appointments is based on an old Justice Department legal opinion; it’s not clear whether that opinion would hold for House-enforced non-recess recesses, and at any rate it is not binding. Presidents shouldn’t ignore Justice Department legal opinions without good reason, but in my view there is ample reason to do so here.
2. Invoke the Article II power of the president to resolve differences between the House and Senate over recesses in the Senate’s favor. This appears to be an untested and unused presidential power, but the plain meaning of the text seem to support a potential presidential role, either for intrasession recesses or, as would be the case now, for end of session adjournment.
3. Wait until between the 1st and 2nd sessions of the 112th Congress, which will be no later than the first week of January. There’s precedent for making recess appointments during that window, no matter how small the duration.
It’s worth noting that the non-partisan Congressional Research Service produced a report on this in March, and concluded that a White House is not required to honor the pro-forma sessions when considering recess appointments. In one instance, Teddy Roosevelt “once made recess appointments during an intersession recess of less than one day.”
In case this isn’t obvious, if Obama made such a move, the political blowback would be extraordinary, but given the extremism of Republican obstructionism, and the suddenly-routine GOP abuses of the political process, the president would be well justified in concluding the Senate didn’t give him much of a choice.
This is especially true in light of the circumstances surrounding Cordray — an overwhelmingly qualified nominee who’s been approved by the relevant committee, who enjoys bipartisan support, who would easily be confirmed if his nomination were given an up-or-down vote, and whose agency cannot function until he takes the reins.
Also note, while senators generally don’t like recess appointments, Obama would have Democratic support were he to pursue this. Consider these remarks yesterday today from Sen. Chuck Schumer (D-N.Y.):
