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The Chief Justice and the Cordray Appointment

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President Obama announced today that he will use his constitutional authority under the Recess Appointments Clause to install Richard Cordray as the head of the Consumer Financial Protection Bureau and three commissioners to the National Labor Relations Board, despite Republican efforts to prevent this by keeping the Senate in pro-forma session during the holiday recess.

Republicans have quickly and predictably condemned President Obama's use of the recess appointment power to overcome partisan gridlock. For example, Speaker John Boehner released a statement calling Cordray's appointment an "extraordinary and entirely unprecedented power grab...[that] would have a devastating effect on the checks and balances that are enshrined in our constitution." Boehner went on to say that "It is clear that the President would rather trample our system of separation of powers than work with the Republicans to move the country forward...I expect the courts will find the appointment to be illegitimate."

The courts may well review President Obama's use of the recess appointment power in this context, but Speaker Boehner may want to re-think his expectations about the outcome in light of a statement in 2010 by no less of an authority than Chief Justice John Roberts.

In 2010, the Supreme Court reviewed a case that arose early in the now three-years-long-and-running effort by President Obama to fill vacancies on the National Labor Relations Board. Then, as now, Senate Republicans were blocking a confirmation vote on President Obama's three nominees to the NLRB. Then, as is the case now, these prolonged vacancies were threatening the function of important government agencies. The New Process Steel v. NLRB case challenged the rulings issued by the two sitting members of the NLRB as a violation of the statute that sets the NLRB quorum at three commissioners. While the case did not directly address the issue of recess appointments, Chief Justice Roberts, during oral argument, suggested that recess appointments could provide a handy solution to the problems posed by partisan gridlock in Congress:

MR. KATYAL: There are three nominees pending right now.

JUSTICE GINSBURG: Three?

MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum -- a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?

As the Chief Justice's question suggests, the recess appointment power is the Founders' way of giving the President the authority to keep the government functioning when Congress is unavailable to confirm his nominees. Here, the President can argue that Congress is effectively unavailable for two reasons. First, Senate Republicans have told the President that they will block by filibuster any nominee to lead the CFPB unless and until the Dodd-Frank law is changed to their liking - a de facto refusal to confirm anyone to lead the Bureau, anytime. Second, and perhaps more important, the Senate is away for a long break during which it is not doing any substantive business whatsoever (call it a recess or not).

Partisans on each side in this matter will surely accuse the other of playing partisan dirty tricks. Senate Republicans have already accused the President of a power grab because, they claim, the pro-forma session means that the Senate is not technically in recess. The President's supporters will counter by saying that Republican Senators are using the trick of pro-forma sessions to strip the President of the recess appointment authority specifically provided to him by the Constitution.

Oral argument in the New Process Steel case suggests that after all this partisan squabbling ends, the President may have the Chief Justice on his side.

Ryan Woo co-wrote this piece.
Cross-posted on Text & History