At the White House last Thursday, President Barack Obama announced his intention of re-nominating Richard Cordray to head up the Consumer Financial Protection Agency, the federal “watchdog” created to forbid “unfair, deceptive, or abusive” financial practices as part of the Dodd-Frank Act. In January 2012, stymied by Senate opposition to Cordray’s original nomination to that position, Obama openly bypassed the Senate and simply installed Cordray in power himself. “He wasn’t allowed an up or down vote in the Senate,” the president complained at the White House last week, “and as a consequence, I took action to appoint him on my own.”
Obama justified that one-sided action under his power to make recess appointments. Under the Appointments Clause of the U.S. Constitution, the president may make temporary appointments 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 problem here is that the Senate was not actually in recess at the time of Cordray’s "recess" appointment, it was in a pro forma session. Obama therefore had no legitimate authority to install Cordray without first obtaining Senate confirmation as required by Article II, Section 2 of the Constitution. It appears the president ignored this inconvenient constitutional requirement in order to expedite his preferred political outcome, or as Obama himself put it, "I took action to appoint him on my own."
That disregard for the Constitution has now come back to haunt the Obama administration. On Friday the United States Court of Appeals for the District of Columbia Circuit issued a scathing decision which nullified three other equally suspect recess appointments made by Obama last year to the National Labor Relations Board. According to the majority opinion of Chief Judge David Sentelle, Obama’s unilateral approach “would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
Indeed it cannot. To make matters worse for the White House, a separate lawsuit is currently underway challenging the constitutionality of Cordray’s recess appointment, which occurred on the same day and under the same questionable circumstances as the three NLRB appointments that have now been ruled to be unconstitutional. Friday’s decision by the D.C. Circuit will only add more legal force to this already strong case against the White House's executive overreach.
Every president wants Congress to fall in line behind his agenda and will complain bitterly if the legislative branch refuses to do so. But that feeling of frustration is no excuse for the president to trample on the separation of powers.