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National Debt

President Obama's Recess Appointments Defy our System of Checks and Balances

  • January 09, 2012

    On January 4, 2012, President Obama announced a recess appointment of Richard Cordray to run the Consumer Financial Protection Bureau.  Additionally, the President announced recess appointments to install Sharon Block, Richard Griffin and Terence Flynn as National Labor Relations Board members. Block and Griffin are Democrats, while Flynn is a Republican.  Interestingly, the first of these series of appointments was announced at a campaign rally for the President’s reelection campaign in the swing state of Ohio. Cordray was a Democrat Attorney General of the State. What makes these appointments all the more noteworthy is that the Senate was not in recess, making the these appointments highly questionable. 

    A recent non-partisan Congressional Research Service report found that:

    Under the Constitution (Article II, §2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. Generally, the President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office. The Constitution also provides an exception to this process. When the Senate is in recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval (Article II, §2, clause 3).

    The Constitution is not specific on the length of time the Senate must be in recess before the President can make a recess appointment.  A Department of Justice brief in 1993 implied that the President may make a recess appointment after the Senate is in recess for three or more days.  The brief associated the minimum recess length with Article I, Section 5 of the U.S. Constitution. This “Adjournments Clause” states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ....”

    However, the sticking point is the separated powers that our founding fathers devised when they wrote the Constitution. Each branch is responsible for its own functions. They also explicitly wrote that each of the bodies of Congress decide their own rules. This means that only the Senate states when it is in and out of session – not the President.

    To place in historical perspective, President Bill Clinton made 139 recess appointments and President George W. Bush made 171 recess appoints.  Prior to these recent appointments, President Obama has made 28 recess appointments.  However, not one of these recess appointments was done in the manner of President Obama’s appointments on January 4, 2012.

    With this unprecedented exercise of power, will the President now consider any moment the Senate is not actively debating a bill on the floor as a time they are out of session? Could appointments now come moments before the Senate gavels open each day, in the middle of the night, or on the weekends? These appointments are nothing more than a power grab to rally the President’s base prior to an election.

    However, it is being done in the face of our founding fathers, our governing Constitution, and the rule of law of this nation. CaptiolWatch urges our Senators and Representatives to promptly take up this matter and give it its due investigation. This is not a question of either a Democrat or Republican President’s attempts to fill out their agencies, but whether this nation will have a series of checks and balances ever again.


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