The AP is reporting that President Obama will give former Ohio Treasurer Richard Cordray a recess appointment today to head the new Consumer Financial Protection Board. Cordray was nominated to the post some months ago but Senate Republicans have blocked his confirmation due to their opposition to the CFPB’s structure, in particular the lack of meaningful legislative or executive oversight.
If the AP’s report is correct, President Obama’s decision is particularly interesting because the Senate has not officially recessed, at least not according to Senate traditions. As the AP story notes, the Senate has been having pro forma sessions every three days for the express purpose of preventing there from being a recess during which recess appointments could be made. Though done at Republican insistence now, the practice of adjourning without recessing began in 2007 when Senate Democrats sought to prevent President Bush from making recess appointments. According to The Hill, an Obama Administration Justice Department official previously said a recess must be at least three days and a CRS report reported that in the past thirty years no recess appointment has been made during a recess of fewer than ten days. As the CRS report also notes, thus far President Obama has made recess appointments at a significantly slower rate than either of his two immediate predecessors.
UPDATE: From the LA Times:
While the Constitution gives the president the authority to fill executive branch vacancies when the Senate is in recess, a Justice Department opinion in 1993 implied that a recess of more than three days was needed before the president could exercise the power, according to the nonpartisan Congressional Research Service. No such appointments have been made during recesses of fewer than 10 days over the last 20 years, the service said in a December report.
But there is precedent for appointments made during recesses of fewer than three days — President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903.
SECOND UPDATE: I just noticed John Elwood beat me to it. As one would expect, his post is more informative and erudite than mine (and, importantly, explains why President Obama may have authority to make the appointment despite the Senate’s pro forma sessions).