President Barack Obama’s decision to appoint Richard Cordray as head of a new consumer-protection agency and install three members on the National Labor Relations Board while the Senate was in recess — if it was — didn’t just set off a political food fight. It may have ignited a battle with constitutional implications.
“The decision to install the four nominees without Senate approval under the constitutional provision for making appointments when lawmakers are in recess was a provocative opening salvo in Mr. Obama’s re-election strategy of demonizing Congress,” The New York Times noted the other day. “It threatened to ignite a legal challenge and left Republicans fuming that the president was abusing the recess privilege.”
The move didn’t just leave the Republicans fuming. As Charlie Savage of The Times wrote, it raised basic questions of what constitutes a “recess.” Members of the Senate, who jealously guard their powers and prerogatives, don’t consider themselves in recess. Indeed, over the holidays a few members have strolled in to the chamber to wield the gavel, signifying that the body is definitely not in recess.
But that pro forma exercise isn’t enough, the White House contends. “Can the Senate, through form, render a constitutional power of the executive obsolete?” Kathryn Ruemmler, the president’s White House Counsel, said in an interview with Savage. “Our view is that the answer to that question is clearly no.”
Senate Democrats originally hatched the idea of holding pro-forma sessions to block George W. Bush’s recess appointments. But Senate Republicans - the minority in the chamber - have taken the move a step further. Republicans are citing a clause in the Constitution to justify their ability to keep the Senate in pro-forma session, even though Democrats control the chamber. That clause in Article 1 of the Constitution requires each House of Congress to consent to the adjournment of the other if no business will be conducted for more than three days. Republicans control the House and have not agreed to adjourn.
As Main Justice reported when Ruemmler was named the White House counsel last June, Obama described her as a lawyer “with impeccable judgment.” She was the Principal Associate Deputy Attorney General, the No. 2 person in the Deputy Attorney General’s office, from January 2009 until she moved to a deputy’s job in the White House counsel’s office in January 2010. She also served as associate counsel to President Bill Clinton in 2000 and 2001 and was a DOJ trial attorney on the Enron task force.
Predictably, the Senate Republican minority leader, Mitch McConnell of Kentucky, disagreed with Ruemmler, asserting that Obama had “arrogantly circumvented the American people.” McConnell added that the move “fundamentally endangers” Congress’s ability to be a check on the executive branch. But Massachusetts Sen. Scott Brown, a Republican expected to face a tough re-election challenge this year from the consumer protection agency’s godmother Elizabeth Warren, called the nominating system “completely broken” in supporting the move.
It’s virtually certain that the dispute will boil after Congress returns to the Capitol, as Josh Gerstein observed in Under the Radar. Gerstein said the White House wouldn’t say if it relied on an opinion from the Department of Justice’s Office of Legal Counsel before making the appointments. Sen. Charles E. Grassley of Iowa, ranking Republican on the Senate Judiciary Committee, accused Obama of “ignoring the longstanding advice” of the OLC that an adjournment of “five or even 10 days” would not be sufficient for a recess appointment, Gerstein reported.
Grassley said he will press the DOJ for that opinion, if it exists.
And Todd Gaziano, who worked in the OLC under several presidents years ago and is now director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation, called Obama’s move “a tyrannical abuse of power” and “quite shocking” in a blog posting, as Savage noted. Main Justice readers may remember Gaziano for his role at the U.S. Commission on Civil Rights, where he led the racially tinged New Black Panther Party voting rights investigation aimed at the Barack Obama Justice Department.
The coming weeks seem likely to foment more bitterness over the recess appointments (if that’s what they were) between the White House and Senate Republicans. Will it all be forgotten on Inauguration Day, a little over a year from now? Or will Richard Cordray’s name live on in the history of the law, as William Marbury’s has since the early days of the Republic?