Obama’s Recess Appointment: Why Cordray Keeps His Commission, and Survives (or Avoids) Constitutional Challenge [Update]

Authors for The Volokh Conspiracy — the go-to blog for legal nerds (I offer this as a very high compliment) — ask whether President Obama’s act placing Richard Cordray at the head of the Consumer Financial Protection Bureau qualifies as a valid exercise of the recess appointment power since, though recessed, Congressional Republicans have kept the chamber technically “in session” to prevent just such an appointment. It does (or should), but they’re asking the wrong question. The real question is, who’s going to stop him?

A quick review. The Constitution confers on the President the right to appoint executive officers while the Congress stands adjourned:

The President shall have Power 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.

U.S. Const., Art. II, § 2, cl. 3. Although Congress stands recessed, Republicans leaders have managed to gavel the chamber to order at regular intervals during the recess, on the theory that each such pro forma session interrupts the recess, thereby preventing any appointments over the legislators’ winter vacation. John Elwood’s brilliant piece — which I strongly recommend — concludes that the Constitution’s framers cared more about true sessions than merely the fabricated appearance of sessions; that Congress remains recessed; and that, therefore, President Obama’s appointment is valid. Elwood hardly stands alone. Bush’s OLC adopted the same position, at least on the op-ed pages of The Washington Post. I expect that, on the merits, Republican legislators (or interest groups) would have a hard time arguing that the pro forma trick amounts to anything other than a slick constitutional run-around. Generally, the Constitution means what it says, and we shouldn’t lightly presume that the framers would’ve simply smiled and nodded at slick little acts of legerdemain like the pro forma session.

Let’s assume for the sake of argument, though, that President Obama has actually done something shocking — aside from standing up for himself, which actually does come as a surprise. Let’s say that any federal judge would agree with Republicans, and hold President Obama’s invalid as outside of the recess appointment power. Surprisingly, this may still not matter.

The reason is, not every right has a remedy; and more to the point, no individual citizen enjoys a “right” to see their government managed effectively. See generally Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) (canvassing authorities). The only remedy to correct an unconstitutional appointment would likely be something like a writ of mandamus, but all such remaining writs incorporate the requirement that the Article III requirement that the petitioner possess “standing” — a discrete, particularized interest in the activity he would like to see performed. Marbury v. Madison, of course, famously involved a mandamus petition, but in that case the petitioner sought to have his appointment reinstated, not to have someone else’s rescinded. If no-one can claim a direct injury from Mr. Cordray’s appointment, no-one may challenge it.

Whatever exception exists may lie in the structure of the Dodd-Frank Act, which itself created the Consumer Financial Protection Bureau. According to other Volokh authors, some of the CFPB’s powers require a validly-appointed chief; if this bears out, Republicans could (theoretically) await some regulatory action from the CFPB that creates a discrete, particularized “injury,” and then sue to enjoin the action on the theory that, without a validly-appointed chief, any of the CFPB’s actions are ultra vires, since the prerequisites to the agency’s statutory authority have not been met.

Such activity may not be forthcoming, though, and by the time it is, most voters will have forgotten the afront. Separately, query whether Republicans actually want to dig in their heels on another issue favored by the 99% — responsible regulation of major financial actors — and give the President license to grandstand about both the wages of Republican obstructionism, and the need for common-sense custodianship of the American economy.

Odds are this is a fight Republicans simply lost. By changing up the play at the last minute, Obama rolled the hard six he needed, resulting in a quick, clean checkmate, and not a penalty flag in sight. And other such game metaphors.

Update: a Facebook friend directs me to Evans v. Stephens, 387 F. 3d 1220 (11th Cir. 2004) (html/pdf slip op.). There, the Court reached the merits of a Recess Appointment Challenge in the context of the recess appointment of an Article III judge. The Court discusses the jurisdictional question in note 1, where they appear to imply that recess appointment challenges, as applied to Article III judges, may be heard at the court’s discretion. Here, too, the suit was brought by litigants before the allegedly-unlawful appointee, who necessarily possess a discrete, particularized interest in the question of what authority (if any) their judge possesses. For these reasons, I don’t view Evans as necessarily foreclosing a standing argument in the non-Article III context. Note, too, that Evans‘ ultimate holding reads the appointment clause quite broadly.



  1. Yep. But count me among the people who think the clause only ever should have been applied to vacancies created during the recess because “that may happen” is properly read as referring to an event plus fitting the reason the recess appointment power made sense.

    Of course it should all be a moot point. Alexander Graham Bell and the Wright Brothers ended the physical limitations on communications and travel that necessitated the clause as a way to replace officials who died while the Senate was unavailable. The recess appointment clause IMO is vestigial and should have been amended away decades ago.

    Also: Volokh Conspiracy rocks! And did you see the post about the Georgia case? A court may finally be able to reject birthers on the merits!

    1. But doing away with the recess clause might require the Congressmembers to interrupt their vacations. Surely you realise how unreasonable that would be!

  2. […] a theory the 11th Circuit, no bastion of liberalism, has already rejected (see the update to our last post). And Yoo jumps right to the slippery slope argument — and a particularly absurd one at that. […]

  3. I mean, I think Obama needs to do this more often.

    There’s a lot of unsaid tradition in how our governance works. One of these things, is that Congress will reasonably work with the executive branch to execute the laws. You would think, that Republicans would want to avoid having these recess appointments, of which they have no say, and instead work together in putting a person in who they think will be the best option for them under the circumstances.

    I think, as long as Obama actually has this threat over their heads, they have an incentive to work together on these things.

  4. Exactly. Moves like this alter the calculus in the Republican caucus — if they know he has it in himself to pull moves like this, they’ll think twice before being such monstrous dicks.

  5. The Congress was not in recess. Reid and Obama ( when senator) stayed in session for the last two years of the Bush Admiinistration because they were afraid that he would attempt to appoint someone while they were in recess as is within his powers according to the Constitution. For that reason, they were in pro forma session and it worked, Bush could not and did not make any appointments without the consent of Congress during the last 2 years and I am sure that he wanted to . The President is limited in his powers and this double check exists to protect the people. Congress consists of dems and repubs voted in by us, to act and represent us as the sole mouth to the President. This checking, debate, advising, review process ensures that all interests are served and not just the interest and agenda of one man, the president. The senate voted on Cordray on 12/8/2011 according to public Congressional voting records anyone can look up with 43 Republicans voting against Cordray and 50 Dems voting for Cordray. Since a majority is needed, representing us the majority, a 3/5 vote is necessary. This means that either side needed 60 votes. Neither the Republicans nor the democrats got the 60 votes and so neither the majority of the republicans nor the democrats approved of Cordray. Then the President appointed him anyway, against majority rule, which means against us which are the majority they are representing and voting in behalf, serving his own interests and agenda and setting a dangerous precedent. As a historian scholar, no other president in our history has ever made appointments while Congress was in pro form session, ever. Even Bush, who surely would have, during the last 2 years, if he could. OBama is to uphold our Constitution and this document protects us and ensures us freedom and democracy. This double check is to make the appointment of persons to powerful positions over all of us, be made prudently and for the best interests of us all-the majority, not just one man’s interests. As President, he is duty bound to work with Congress, which acts on our behalf, and to uphold them and our constitution. You are allowing one man to go above the majority and do what he wants when the majority votes against it. This is not democracy..this is a king. These protections make it so a tyrant cannot rise appointing people to powerful positions answerable only to him with no checks or balances, and not answerable to the people. Democracy is a government run by the people for the people, not for one man. Why aren’t you questioning why the majority of dems or repubs did not want Cordray? Why aren’t you questioning why Obama would not respect majority rule and voting and then lie to everyone that it was the republicans alone which stalled the nomination, not even taking the vote either way when it is on record as being voted on and voted down by both parties. Have you researched Cordray and his past affliations or wrote to your senators and asked them what the deal is? Have you checked the voting record to ensure you were not lied to? Or do you just blindly follow any good sounding to you opinion, based on unverifiable facts, that happens to cross your ears? The reporting to date states that Obama appointed Cordray during a recess appointment which are in the rights of the president citing other presidents who did the same of which they had the power to do. This has nothing to do with this situation as there was no congressional recess. A recess has to be approved and officiated and announced as such by both bodies of Congress and recess is not absence as much business is done by the President and Congress away from the white house. A recess if official and they were not in recess and this has never been done by any president as it is unconsitutional and against his oath of office. You should be writing your senators for immediate correction and action to ensure that our constitution is upheld and adhered to as vowed by the President and all our elected officials. If not for yourselves, certainly for your children and their children. Because when you allow the constitution to be disregarded, you allow democracy to be disregarded and our freedoms. Read the constitution and understand it, it is very clear in this regard. Also it states, as has been quoted repeatedly in the media, that the president has the powers to appoint persons to fill vacancies ocurring during a Congressional Recess, as defined above. This was so when in the past, Congress went to their jobs for half of the year, they only met for half of the year and if positions became vacant, the government would still run smoothly until they returned. These were temporary assignments. In this case, as you can verify, the vacancy did not occur during any Congressional recess as there wasn’t any recess and if they had received appropriate authorization and vote and announcement for Recess, the vacancy still occured well before the dates in question. So in either case, this also violates the constitution. Also, this does not constitute clearly a vacancy, because this position has never been filled and the agency has never been implemented as it is a new committee and position not even fully funded specified in the Dodd bill and thus cannot be defined as a current position in the government which has now become vacant. There is so much wrong with this and it is so disappointing that Obama is so against freedom that he thinks it his right to violate his promises to us and go against his oath of office. But more disappointing is how what I read is so ignorant in its support. Don’t you know how this ends? Read a little history…others have done this not so long ago. You can verify that also as the facts are just as clear. Others have been elected by the people in a democratic society and become a democratic president with another agenda in mind from the beginning and then little by little put in place commitees of far reaching power and directors of unchecked powers answerable only to the democratic president bypassing their version of their “constitution and congress” until they woke up years later thinking they had democracy but awoke to NAZI Germany…I’m sure that you learned that right? Research your history and learn your constitution and stick up for your country and not some party…this isn’t about party against party…we are in this together…this is about us…quit being separated and divided and be for America and democracy and fight for freedom ensure by the constitution for your children, the freedoms you enjoy, preserve them and fight for them for generations to come. Stop believing unverifiable media reports…they don’t have facts for a reason…question everything and research…we have more information now than ever…there is no excuse to be fooled…Write your senators and insist that our constitution be adhered to and upheld no matter who or what you support or pledge allegiance. stop pledging allegience to a man…and pledge allegiance to our country….

  6. You are aware that Reid and Obama(then senator), refused to go into recess that last 2 years of Bush afraid he would attempt to make appointments to powerful positions without Congressional approval while they were on recess as is the president power to do if the vacancy occurs during a Congressional recess instead choosing to remain in pro forma sessions this entire time. Bush did not and could not make appointments without congressional approval for these last two years because it is unconstitutional. No president has ever in our history made an appointment when Congress was in session and pro forma sessions are in session. In order for one body of Congress to go on recess it must be approved and ruled on by the other body and announced. This is a matter of record as is all voting sessions available to the public. The question is not whether the president could make a recess appointment, he can. But Congress was not in recess and the record substantiates this. Also prior precedent of 100 years of adhering to the constitutional confines of this issue, has established rules of conduct of which no other president has challenged or went against, until now. This is to protect you and I. This is a double check and prevents the rise of one man to king or tyrant by appointing people serving his own interests and agenda above the interests and agenda of the majority-wihich is you and I and everyone. We are represented by Congress, who we elect to be the only voice we have to the president and they are to vote and represent us as if they were us in our best interests, if they don’t, we are duty bound to vote them out and vote others in that will. Consequently, Congressional approval protects us and causes that our voices are heard and we have representation in our government voting and the people placed in powerful positions over us. The senate voted on Cordray on 12/8/2011 and consists of dems and repubs intermixed. The majority vote must be received so that all of us are represented, being the majority and this means that 3/5 of either party must be received to appoint a presidential nominee. The voting record you can look up, states clearly that 43 Republicans and only 50 democrats approved of Cordray for this position. In order for his appointment to go through, 60 votes would have had to be received. From this it is easy to see that both dems and repubs, in representing all of us, did not approve of Cordray being appointed not just republicans and you all should be offended and outraged by the President and the media’s misreporting and lies stating otherwise especially when this lie is so easily verified. Also there is a question regarding the term vacancies occuring during a Congressional recess of which there was none. But if Congress had gone to recess pursuant to our laws and constitutional laws and precedent, this position’s vacancy did not occur during the dates in question but well before that. Also, this position has never been filled before and the comittee is not fully funded being only newly established under the DODD bill of late. The intent of the inclusion of this sentiment is understood as being necessary because in previous generations Congress only met for six months out of the year, having careers and farms to attend to the other six months and should any vacancy arise before they returned while they were in official recess, the government would run smoothly with the powers defaulting to the President temporarily until they returned. Obviously, this position having never been filled does not fit within the intent of this well understood language as it could not become vacant if it has never been filed before. The questions you should be asking is why the majority of dems and repubs did not approve of Cordray as the voting confirms and why Obama would mislead you into believing it was only repubs that stalled his appointment and why this president does not adhere to our Constitution or uphold it despite his oath of office and would think to go against “majority voting” which represents all of us and our majority interests and majority agenda and instead put his own personal agenda and interests above the majority rule–us—as represented by the Congress we elect. Where is our protection, if one man can ignore our constitution, lie about it and control the media reporting to lie about it, and override the only voice we have, the only representation we have in our government through our representatives–Congress. This is very dangerous….and sets a dangerous percedent. This isn’t a party issue , this is a democracy issue…We must insist our constitution be upheld period….for our children and their children. The other nominees to the powerful labor comittees were not even on the roster for the Senate to vote on indictating that they were rushed in without any senate review, advise or rule and without any background check or any checks in place at all.. This is very alarming and if you are not alarmed….you should be… If you support this attack against our constitution and our democracy and thus our freedoms and voice that it protects and ensures….you should be ashamed of yourself…

%d bloggers like this: