By DAVID B. RIVKIN JR. And LEE A. CASEY
President Obama's appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.
Each of these jobs requires Senate confirmation. The president's ability to fill them without that confirmation, using his constitutional power to "fill up vacancies that may happen during the recess of the Senate," depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.
The Constitution's Framers assumed that Congress would convene only part of each year, and that there would be long stretches during which the Senate would be unavailable to play its critical "advice and consent" role in the appointment of federal officials. Their solution was to allow the president to make temporary, "recess" appointments permitting the individuals chosen to serve for up to two years, until the end of Congress's next session. This, it was thought, would give the Senate time to act upon actual nominees for the offices once it reconvened without leaving these—perhaps critical—posts vacant for many months.
Presidents have used this authority with alacrity, especially in recent times, as a means of putting a favored nominee on the job even in the face of significant Senate opposition. Historically, the president's lawyers have advised that this is a constitutionally permissible exercise of his recess-appointment power, so long as the Senate is actually in recess.
The Constitution does not define a "recess," but in view of the original purpose of the recess-appointment power, a senatorial absence of more than a few days has been considered a necessary prerequisite. This is particularly the case because the Constitution also provides (in Article 1, section 5, clause 4) that neither house of Congress can "adjourn for more than three days" without the other's consent—thus ensuring that the flow of legislative work cannot be unilaterally interrupted. The Senate can hardly be in recess in the absence of such an agreement—and there is none now.
In more recent years, and especially during President George W. Bush's administration, the Senate has attempted to limit recess appointments even further by remaining "in session" on a pro forma basis. Whether such sessions are inherently sufficient to defeat a presidential recess appointment is debatable. However, in circumstances where the Senate is not merely in session as a theoretical matter, but is actually conducting business—albeit on the basis of agreements that measures can and will be adopted by "unanimous consent" without an actual vote—there can be no question that it is not in recess.
That is the situation today. The traditional test, as articulated in a 1989 published opinion by the Justice Department's own constitutional experts in the Office of Legal Counsel, is "whether the adjournment of the Senate is of such duration that the Senate could 'not receive communications from the President or participate as a body in making appointments.'" Today's Senate, which is controlled by the president's own party, is fully capable of performing both functions in accordance with its rules. Indeed, the Senate is so much in session that on Dec. 23—three days after beginning its pro forma session—it passed President Obama's current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed.
Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body's own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab.
It is not up to the president to decide whether the Senate is organized properly or working hard enough. However much the supposedly power-hungry President George W. Bush may have resented the Senate's practice of staying "in session" to defeat his recess-appointment power, he nevertheless respected the Senate's judgment on the point.
The president has done his new appointees and the public no favors. Both the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau are regulatory agencies with profound real-world impact. Those individuals and businesses subject to regulations and rulings adopted during the tenure of Mr. Obama's recess appointees can challenge the legality of those measures in the courts, and they will very likely succeed.
Only two years ago in New Process Steel v. NLRB, the Supreme Court undercut hundreds of NLRB decisions by ruling that the board had not lawfully organized itself after the terms of two recess appointee members expired, leaving it without a quorum. Similar issues will arise when both the new financial bureau and the NLRB begin to act with members whose appointments are constitutionally insupportable.
The fact that the president has apparently triggered the constitutional crisis without really expecting to produce any lasting policy impact, and for no better reason than to bolster his claim of running against a "do-nothing" Congress (the key part of his re-election campaign), makes his behavior all the more reprehensible.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to the Foundation for Defense of Democracies.