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January 16 2012

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Constitutional Issue or Politics as Usual?

posted by Allie

During law school, I sat through my fair share of constitutional law discussions.  In fact, nearly every class I took during law school had some sort of constitutional component, even if it was minor. So imagine my surprise when the headlines for the last couple weeks have discussed a constitutional term that I had never heard of – recess appointments! 

President Obama is receiving criticism from many Republicans for making appointments while Congress is in recess.  The most controversial appointment was naming Richard Cordray as the first director of the Consumer Financial Protection Bureau.  This appointment comes after months of a standoff between the President and the Senate concerning the nomination.  Originally, consumer advocate, Elizabeth Warren, had been considered for the top post at the agency she had a large part in creating; however, because her appointment was unlikely with the current makeup of the Senate, President Obama moved on to Richard Cordray.  (Side note: Senate Republicans clearly didn’t want Elizabeth Warren taking charge of the new consumer agency.  Do you think they’ll be happier with her as a fellow Senate member? Ha.)

In order to finally name Cordray as Director and get the Consumer Financial Protection Bureau up and running, President Obama exercised his power under the recess appointment clause and named Cordray to the post without the Senate.  The recess appointment clause provides that “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.” 

The biggest issue with Obama’s recent appointments stems from the Republicans' claim that the Senate was not in recess at the time the appointments were made.  Instead, because the Senate was conducting “pro forma” sessions, there was no recess going on therefore Obama did not have the authority to make the appointments. 

Now, I don’t think you have to graduate from law school to question these pro forma sessions.  Nearly every Senator is out of D.C., gone for the holiday season.  Sure, the Senate may have had a junior Senator strike the gavel to begin the pro forma session, but he did so to an empty chamber. 

I don’t want to belittle any legitimate argument concerning Separation of Powers and the Constitution, but I’d like to wager the guess that the American public does not care about this current debate.  The Consumer Financial Protection Bureau was formed, whether Senate Republicans like it or not, and holding up the appointment of its Director is merely an attempt to repeat history and undo the creation of the agency.  The 2012 election is months away, and those newly elected wouldn’t even take office until January 2013.  Can you honestly believe that you could hold out on appointing Cordray for another year?  Well, for now, Obama’s Justice Department as given the green light to the appointment.  The irony of the whole thing is that even if Senate Republicans were able to stall the appointment past the 2012 election, it’s now possible that Elizabeth Warren could have a seat in the Senate come 2013.  Karma?

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Allie

About the Author: Allie
allie@thelawstreetjournal.com

Allie is a third year law student. She graduated from a small liberal arts college in 2008, married that same summer, and started law school in the fall. Talk about transitions! When she’s not studying, she loves to be with her hubby, Dustin. She also enjoys spending time with her family and friends, reading, cooking, crocheting, gardening, and decorating her home. Her favorite shows are Friends, Fringe, 30 Rock, Modern Family, Project Runway, and Top Chef. She has no idea what area of law she wants to practice in but is most drawn to areas involving torts- she is fluent in Spanish and hopes to incorporate that into her legal career.

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