Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank. Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”
This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.
(HT: Jerry Loeser)
Adam says:
I’m not going to spend time looking into it because really this is a silly issue to spend any time on, but isn’t there is a difference between saying “Treasury is authorized” to carry out the duties and “Only the Sec. of Treasury and not the CFPB head is authorized?”
That is based on the language in this post, there is no reason why the Sec. of Treas. can’t be authorized to exercise the relevant powers in the alternative to the CFPB head.
January 4, 2012, 5:20 pmBrett Bellmore says:
Is it too much to ask that we finally get an amendment abolishing the recess appointment power, which exists only to deal with limitations of travel in the 17th century?
In the mean time, while it would not surprise me were the Court to dodge this case, if they don’t I sure wouldn’t want to be the one arguing that the President’s opinion of whether the Senate is in session trumps the Senate’s opinion.
January 4, 2012, 5:30 pmDinD says:
Is it too much to ask that the Senate fullfill its responsibility to vote? If they must filibuster, make them actually filibuster, not just threaten it.
January 4, 2012, 5:41 pmAnon23 says:
I doubt that’s got any legs for either party without a mutual recognition that the Senate would also need to actually provide “advice and consent” when the President submits a nomination.
I’d be happy with a 60-day recess period for actual emergencies, if the Senate also has to provide an up-or-down vote within a roughly similar time period.
But really, it does not reflect well on either party that the mechanism of a Constitutional Amendment would be required to effect such a change.
January 4, 2012, 5:44 pmguest says:
Can’t Obama sidestep this problem by having treasury pro forma bless the decisions of the CFPB?
January 4, 2012, 5:54 pmPhatty says:
You’re on to something there. The “advice and consent” should be assumed to be given if no formal action is taken by the Senate within 60 days of the President submitting a nomination.
January 4, 2012, 5:55 pmMorat20 says:
Sure, get rid of recess appointments. To fix the whole mess, state that if the Senate doesn’t hold an up-or-down vote on a non-lifetime nominee within, oh, 90 days of nomination than it’s expressed consent for the position.
Anyone appointed to terms longer than 8 years but less than a lifetime appointment gets 120 days until a lack of a straight vote indicates consent.
Give lifetime appointment positions to 240 days.
Then just call it “fair”. The Senate has to actually, you know, ‘advise and consent’ and not just nullify positions by refusing to fill anyone — or dick around with blue slips and prevent votes.
Filibustering it just means the nominee passes ultimately anyways, so no more need for nuclear options or filibuster abuse.
Maybe add in some fudge factor for true recess appointments — say, the length of time the Senate has plus 30 days — for actual emergencies. Your whole Supreme Court kicks the bucket and half the Senate is gone, well, you can recess appointment a new court for 270 days. Better get on the ball replacing the Senate.
I suspect any President would happily trade away his recess appointment rights for forcing the Senate to do it’s job.
January 4, 2012, 5:59 pmDrGrishka says:
The problem is that there are 2 types of authorities in the CFPB: 1) Is the transferred authority from the Treasury and 2) newly created authority. As to the former the SoTr can continue to exercise whatever authority he had before. But as to the latter since the newly created authority doesn’t vest with anyone until a Director is confirmed, SoTr can’t “bless” anything.
January 4, 2012, 6:00 pmJesse-Az says:
Amazing how most of the posters so far on this thread are advocating for basically the “Nuclear Option” you decried on judicial appointments just 4 years ago.
January 4, 2012, 6:01 pmAnonymous says:
Comments on this critique of your interpretation?
http://rortybomb.wordpress.com/2012/01/04/sorry-cato-a-cfpb-recess-appointment-has-full-regulatory-powers/
January 4, 2012, 6:02 pmhtom says:
It’s good that we have a President who’s a legal scholar! ;)
January 4, 2012, 6:05 pmJoe says:
Brett Bellmore says:
Is it too much to ask that we finally get an amendment abolishing the recess appointment power, which exists only to deal with limitations of travel in the 17th century?
The 1600s? The Senate is out of session, sometimes for a significant amount of time, today as well.’
Each time this occurs and some vacancy arises, the President is going to have to call the Senate back in session for them to confirm the person? Perhaps, especially given how long the confirmation process is today, this is deemed unnecessary when a temporary appointment can be made via the recess power?
In the mean time, while it would not surprise me were the Court to dodge this case, if they don’t I sure wouldn’t want to be the one arguing that the President’s opinion of whether the Senate is in session trumps the Senate’s opinion.
As compared to Congress disagreeing on what “interstate commerce” might be when the executive might disagree or what? Given both are self-interested here and the ‘session’ here is a joke (see op-ed cited in recent post, co-written by a conservative), I don’t see it as THAT hard of a sell.
January 4, 2012, 6:08 pmMartinned says:
I think there are two differences:
January 4, 2012, 6:10 pm1. Many commenters, and IIRC many conspirators as well, make a distinction between judicial appointments and executive branch appointments.
2. In this case, Senate Republicans are ticking off people all over the political spectrum by using the advice & consent power as a veto over a bill that’s already been passed. That’s probably not legally relevant, but it sure matters politically.
silverpie says:
Now you’ve reversed the filibuster issue–the supporters of a nominee would be able to win with 2/5+1 vote.
January 4, 2012, 6:12 pmMartinned says:
While I appreciate your new-found enthusiasm for the recess power, let’s not pretend there are all that many jobs that absolutely have to be filled within a few weeks or months. That’s what deputies and colleagues are for.
January 4, 2012, 6:13 pmBrett Bellmore says:
What’s with the invisible comments?
January 4, 2012, 6:18 pmJoe says:
Morat20′s proposal looks pretty good to me.
January 4, 2012, 6:22 pmKazinski says:
I would be pissed off if the Senate didn’t claw back an unconstitutional Enron style off budget funding mechanism for a Federal agency. It is bad law and bad management practice to create agencies that are immune from congressional oversight. Despite the President being Commander in Chief, Congress still controls the Pentagon’s budget. I’d like someone to explain to me why the CFPB needs to be insulated from Congressional power more than the Pentagon does.
January 4, 2012, 6:23 pmdw says:
As I understand it, Senate Republicans threatened to filibuster _any_ nominee to head the CFBP until that body’s powers were legally changed.
Would it be fair to say that such an attitude runs against the spirit of the Constitution?
January 4, 2012, 6:23 pmhtom says:
It’s so good we have a legal scholar as President!
January 4, 2012, 6:25 pmOwen H. says:
If the Republicans think the CFPB needs to be changed legislatively, isn’t there some group in the government that has the power and authority to do that?
January 4, 2012, 6:28 pmMAM says:
I understand the argument but isn’t a recess appointment the equivalent of a confirmation? That a statute states that an agency head must be confirmed by the Senate does not mean that you can’t make a recess appointment. It would seem to me that it means that the recess appointment is a valid appointment but subject to all the limitations that come with a recess appointment.
Or can you legislate away constitutional power?
January 4, 2012, 6:31 pmOrenWithAnE says:
(1) Obama appoints Goodwin Liu to the Supreme Court.
January 4, 2012, 6:40 pm(2) Reid fills the Senate calendar with unrelated business for 60 days.
(3) Profit (and with only 2 people in on the deal!)
Jon Shields says:
This seems quite wrong.
I don’t see anywhere in the statute that prohibits the bureau from having any powers prior to Senate confirmation of the Director. Rather, the statute simply grants power to a director (without which the agency does not have). The statute also grants a subset of that power to the Treasury Secretary, and the Treasury Secretary has that power until the director is confirmed. (That is the power being used to run the agency today.)
To be specific, I see the words “confirmed” and/or “Senate” mentioned in two relevant places. The first is in Subtitle A, section 1011. It says:
“(b) (2) IN GENERAL- The Office shall be headed by a Director, who shall be appointed by the President, by and with the advice and consent of the Senate.”
It would seem to me that this can be read to allow a recess appointment. This language is used all over the place in all kinds of laws, and if it is read any other way, I would guess that hundreds of previous recess appointments (and all associated executive actions) would be called into question. It would also mean that there could never be a recess appointment — it does not distinguish between the first appointment and subsequent appointments.
The second relevant use of the word “Senate” appears in Subtitle F (the “transfer of authority” section). The section describes how authority is transferred from the pre-existing agencies to the CFPB. (This is only a subset of the ultimate power of the CFPB — other subtitles outline new power no previous agency had, such as the ability to regulate non-bank instititions, abusive practices, etc.)
In Subtitle F section 1066, it says:
“The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011.”
If this is read to distinguish between a confirmation and a recess appointment (as you propose), I don’t think it matters. This would just mean that the Secretary will still have the powers under subtitle F, even if there is a recess-appointed director. In any event, the new powers the director have do not appear in subtitle F; they appear in other subtitles (such as subtitle A). That provision cannot possibly be read to affect the new powers of the Director outside of subtitle F (that the Secretary of the Treasury never had).
January 4, 2012, 6:42 pmWRD says:
I’m sure another commenter has or will pick up on this, but the Congressional Research Service directly addressed this issue.
The full report also addresses the differences between the CFPB Director and the Treasury Secretary.
January 4, 2012, 7:02 pmRobby Grossman says:
Would this pose legal concerns over the appointment itself, or would it just block authority from transferring to the CFPB as it has thus far? In other words, could this be taken to court immediately, or would they need to wait for the CFPB to do something and then argue it doesn’t [yet] have the authority?
January 4, 2012, 7:14 pmNoah says:
So does funding by the Fed putting the agency beyond the financial oversight of the Congress.
January 4, 2012, 7:16 pmNoah says:
Who needs the Federal Courts when we Congressional Research Service?
January 4, 2012, 7:19 pmragebot says:
FOX News just reported this.
What ever the legal issues here (and I will throw in the idea of how a “living constitution” would deal with the changes in the ease of calling congress into session) I would claim the political ramifications will be more important in the short run.
Already there are claims this will make it more difficult for Obama and Congress to work together. One reason Obamacare is headed to the SCOUS is the tortured language needed to avoid calling it a tax instead of a mandate. Not we have another Obama program with tortured language putting it off the books and granting power to a distant part in lieu of the real director.
Before considering a bill to limit how long the Senate has to vote on appointments maybe there should be consideration of a bill to require legislators to know whats in the bill before it is voted on, say one days wait for every twenty pages in the bill.
January 4, 2012, 7:22 pme pearse says:
“Leaving aside the constitutional questions” it is exactly what we shouldn’t do.
Either this is constitutional or it is not. By precedent it obviously is not. The president knowingly committed an unconstitutional act. Why are we not discussing instead weather this is an impeachable act or not?
January 4, 2012, 7:33 pmDrGrishka says:
That is not the interpretation given by the Inspectors General of the Fed and the Treasury just last year. They explicitly stated that the Director must be a Senate-confirmed one.
January 4, 2012, 7:38 pmWRD says:
So if putting the Bureau under the Fed is against the spirit of the Constitution, is the Fed itself also against the spirit of the Constitution?
Zywicki and you suggest Obama’s action is contrary to Dodd-Frank. CRS says otherwise. Courts may intervene. I am suggesting the CRS interpretation seems much more thorough and convincing. Are you willing to reconcile your view with theirs?
January 4, 2012, 7:46 pmDavid says:
I’m all for seeing Zero get hammered on this one. But playing devil’s advocate and seating myself with the Supremes, I raise the following problem regarding the statutory requirement for Senate confirmation of Cordray:
Since it is the Constitution that empowers the president to make recess appointments, Congress cannot trump that power by statute. Were Congress given such power, it could chip away at executive powers until there were effectively no executive branch at all.
January 4, 2012, 7:49 pmMartinned says:
Wow. Care to explain why you’re so certain, especially in light of John Elwood’s persuasive argument to the contrary?
January 4, 2012, 7:50 pmCordray appointment probably illegal - US Message Board - Political Discussion Forum says:
[...] [...]
January 4, 2012, 8:26 pmErik says:
The Military budget has a constitutional expiration date that must be re-approved. Other appropriations do not have to be.
January 4, 2012, 8:33 pmScS says:
The question is whether a recess appointment carries the same weight as a senate confirmation. There’s obviously no precedent for this type of appointment otherwise we probably wouldn’t be talking about it.
January 4, 2012, 8:51 pmfrankcross says:
Silly Martinned. Obama took the action. Therefore it must be unconstitutional.
January 4, 2012, 9:23 pmegd says:
That still requires a majority (51) Democrat senate.
1) Bush nominates Harriet Myers to the Supreme Court.
2) 41 Republicans filibuster proceeding to a vote.
3) Profit!
Now you don’t even need a majority in the Senate to get a nomination through!
January 4, 2012, 9:33 pmmalclave says:
This is the Age of Obama. We can’t be bothered with trivialities like laws or the Constitution.
January 4, 2012, 9:34 pmCalderon says:
Links to the IG statement please? (I’m not questioning your post, just genuinely interested in reading what the IG reports say.)
January 4, 2012, 10:13 pmCalderon says:
Links to the IG statement please?
January 4, 2012, 10:15 pmClark says:
I think epearse is referring to the fact that the Constitution does not permit Kenyans to appoint federal employees.
January 4, 2012, 10:35 pmCFPB | Gears and Springs says:
[...] CFPB (Consumer Financial Protection Bureau) в обход Сената. Юридически это довольно шатко, но, надо полагать, сойдет ему с [...]
January 4, 2012, 10:44 pmDilan Esper says:
If Prof. Zywicki is correct, that provision is unconsitutional. Congress cannot circumvent the recess appointment power by legislation.
January 4, 2012, 10:45 pmmemomachine says:
Why sure. Let Obama make his fake “recess appointment”. Since this appointment is decidedly when the Senate is NOT in recess then any future Republican President would be fully justified in appointing anybody he likes whether the Senate is in recess or not.
Bet you haven’t thought that out quite a well as you may have surmised.
January 4, 2012, 11:06 pmmemomachine says:
And since the Constitution requires Congress to decide funding and does not allow agencies to self-fund then, using your reliance on the Constitution, this means the entire department is a dead letter and cannot pass Constitutional scrutiny.
January 4, 2012, 11:07 pmSDN says:
Not when you understand that Democrats / Leftists are too dishonest to allow into civil societies; they require being able to trust your neighbors on some level. We’re going to need a second “expulsion of the Tories” to actually fix the broken society the Left has created.
January 4, 2012, 11:19 pmJon Shields says:
Congress did “decide funding.” They passed the bill, just like they passed Medicare (which is not subject to the annual appropriations process).
January 4, 2012, 11:25 pmShelbyC says:
Why not? The recess appointment power isn’t meant to allow the president to bypass the senate. They can dissolve or defund the position if they want. Presumably they can say that the position gets dissolved if the prez appoints a recess appointment, or that no funds can be spent by a recess appointee. I don’t know why they can’t directly say that there can’t be a recess appointee.
January 5, 2012, 12:01 amOrenWithAnE says:
The Constitution requires appropriations for money drawn from the Treasury. It does not say that this is the exclusive means for agencies to be funded.
January 5, 2012, 12:09 amHm. says:
A random selection shows that this is extremely common language.
United States Trade Representative:
Assistant Secretary on Aging:
Deputy Secretary of Transportation:
Here’s one of many examples of somebody Obama recess appointed in 2010, the Under Secretary for Management, Department of Homeland Security:
The relevant law is very easy to find. All you have to do is search “[position] cornell” and you’ll get the LLI page for the law. The appointment clauses are typically in there. You’ll find that almost all federal government positions use this exact same language.
So I don’t think this argument is a very good one. It’s essentially saying all recess appointments are invalid, because the statute says that persons shall only be appointed “by and with the advice and consent of the Senate.”
Somebody didn’t do their homework!
January 5, 2012, 12:15 amOrenWithAnE says:
egd, I prefer mine because it requires only the cooperation of one individual versus 41 and, to be frank, no one would cross Reid.
January 5, 2012, 12:20 amDrGrishka says:
http://www.federalreserve.gov/oig/files/Treasury_OIG_Posted_PDF_-_Response_CFPB.pdf
P. 4-7 (referring several times to a requirement of having a “Senate-confirmed” Director).
January 5, 2012, 12:21 amHm. says:
Was my last post deleted or flagged as spam?
I don’t have the time to type and format it all out again. The essence of it was that if you google “[position] cornell” you will get the LLI page of the relevant appointment clauses for any federal position. They almost always use the same exact language.
So this argument is not very convincing. The logical conclusion is that no person with a recess appointment meets the statutory requirements for their position. In other words, this guy is arguing that not a single recess appointment is statutorily valid.
January 5, 2012, 12:24 amDrGrishka says:
The issue is not whether CFPB Director can or cannot be recess appointed. Of course he can. The question is whether certain powers that Congress declared will vest in the agency only once a Director is appointed and confirmed by the Senate will also vest when the Director is recess appointed.
The Constitution does not permit any spending absent appropriation therefor. “Appropriation” doesn’t just mean annual appropriation bills. The only limitation is that military appropriation may not be less regular than biannually. The rest of the appropriating can be done annually, daily, triannually, or on any other schedule. As a result, though CFPB is “self-funded,” Congress can always attach a rider to any bill stating that no money shall be drawn out of the treasury to pay for any CFPB activity.
January 5, 2012, 12:33 amandy grewal says:
Could Congress validly enact a statute saying that the President could appoint an officer, but only with the consent of the House (as opposed to the Senate)? I wouldn’t think so.
Along the same lines, I doubt that this statute could trump the President’s recess power. That is, Congress can’t get around the recess power merely by stating that any or all appointments must be made with Senate consent, without regard to recesses.
Perhaps that is what the statute is intended to do, in which case there’s an interesting question about what to do with it and all related provisions. Do we just sever it? Or, as seems likely under the constitutional avoidance canon, will a court read into the statute a recess appointment exception?
January 5, 2012, 5:27 amJon Shields says:
That IG report only says that the Secretary of the Treasury can continue to exercise its subtitle-F authority until a director is confirmed by the Senate, and that the Secretary cannot (at any point) exercise the new authority in the other subtitles.
However, the report does not say that a recess-appointed director (as opposed to the Secretary of the Treasury) cannot exercise that new authority.
Perhaps this is because a recess appointed director most certainly can exercise such authority. If the courts rule the recess appointment was Constitutional, then the statute does not prohibit that recess appointment from exercising any of the authority in subtitles A-E. The “confirmed by the Senate” language is used in a sentence that specifically refers to subtitle F.
I doubt they will read “confirmed by the Senate” to exclude recess appointments (as recess appointments are frequently made to positions that require Senate confirmation in the statute). But even if they do, it doesn’t matter for the authority in subtitles A-E.
January 5, 2012, 5:55 amJon Shields says:
Oh sure, I’m not arguing otherwise. Congress can attach a rider to any appropriations bill abolishing half of the cabinet departments if it wanted to. The CFPB’s money actually comes from the Fed’s funding by private banks (as opposed to the general treasury), but Congress could add a rider abolishing this scheme or even repealing Dodd-Frank. Of course, Obama would veto all of these bills, just like he would veto a bill that repealed Medicare.
I’m just saying that in the abscence of any appropriation bill (i.e. a shutdown), the CFPB will continue to receive full funding. This is distinct from most regulatory agencies, but similar to Medicare (and is entirely Constitutional).
January 5, 2012, 5:59 amB-Rob says:
Uh, yeah. The constitutional power to make recess appointments trumps the language of the statute saying the senate must advise and consent. Otherwise, as here, the minority filibuster could be use to shut down EVERY presidential appointment conditioned on, for example, Obama providing each Republican senator with a bacon and egg breakfast, if they so demanded. Somehow I doubt the drafters imagined such a possibility . . . .
Strike that — the recess appointment clause DOES envision such treasonous obstreperousness. Imagine if the GOPers refused to confirm a CIA head unless the president gave them a list of all the spies working for the agency. Is there any question whether the president could sidestep those mopes using the recess appointments clause? It is probably best to see the recess appointments clause as a check on senatorial sloth and corruption. Corruption such as the present efforts at blackmail.
January 5, 2012, 8:53 amB-Rob says:
Why does the CFPB need to be insulated from Congressional power? Because Congress decided it should be independent, just as the Fed is independent. This is, of course, amenable to statutory amendment with the president’s agreement. If the GOPers do not like the way the statute is written, they should horse trade with Harry Reid and get it changed. Alas, if the majority does not want the language changed, especially before the agency is up and running, then that answers the question.
You may honestly believe it is “bad law and bad management” to have an agency isolated from
January 5, 2012, 9:15 ampetty partisan meddling by those who do not agree with the very purpose of the agencycongressional oversight. But a duly elected Congress chose to just so isolate the agency. There is nothing unconstitutional about such a structure, of course, and it is not a novel structure. But the “solution” for this “problem” is not to emasculate the agency’s management, as the GOPers have tried here, but to alter the statutory language by Congressional agreement. If and when there is an actual showing that there is something dysfunctional about the structure of the agency, then you will have an argument in favor of repeal. But since you have no such argument, it looks like nothing more than an after the fact effort to use the filibuster to reject a statute that was just passed with significant Congressional support, intended to address serious regulatory problems that recently imperiled our entire economy.Hm. says:
I understand the issue. My point wasn’t addressing the question of whether or not a director can be recess appointed in the first place. The argument here is that because the position of director is defined as one appointed by the President “by and with the advice and consent of the Senate,” a director recess appointed would not have the statutory authority that a confirmed appointee would have. That argument is totally invalid.
The post you quote shows that nearly all federal appointee positions are defined using the phrase “by and with the advice and consent of the Senate.” The logic of this argument means that not a single recess appointment would have have the same statutory authority of a confirmed appointee. This is simply false. Like I said, somebody did not do their homework, or they would have easily found that the language in Dodd-Frank is in every other law establishing a federal appointed position.
January 5, 2012, 9:44 amHm. says:
I understand the issue. My point wasn’t addressing the question of whether or not a director can be recess appointed in the first place. The argument here is that because the position of director is defined as one appointed by the President “by and with the advice and consent of the Senate,” a director recess appointed would not have the statutory authority that a confirmed appointee would have. That argument is totally invalid.
The post you quote shows that nearly all federal appointee positions are defined using the phrase “by and with the advice and consent of the Senate.” The logic of this argument means that not a single recess appointment would have have the same statutory authority of a confirmed appointee. This is simply false. Like I said, somebody did not do their homework, or they would have easily found that the language in Dodd-Frank is in every other law establishing a federal appointed position.
I don’t see anybody arguing that the Under Secretary for Management of the Department of Homeland Security lacked statutory authority when she was recess appointed. Even though the same language is used in the law establishing that position as is used in Dodd-Frank and hundreds of other statutes.
January 5, 2012, 9:44 amHm. says:
I understand the issue. My point wasn’t addressing the question of whether or not a director can be recess appointed in the first place. The argument here is that because the position of director is defined as one appointed by the President “by and with the advice and consent of the Senate,” a director recess appointed would not have the statutory authority that a confirmed appointee would have. That argument is totally invalid.
The post you quote shows that nearly all federal appointee positions are defined using the phrase “by and with the advice and consent of the Senate.” The logic of this argument means that not a single recess appointment would have have the same statutory authority of a confirmed appointee. This is simply false. Like I said, somebody did not do their homework, or they would have easily found that the language in Dodd-Frank is in every other law establishing a federal appointed position.
I don’t see anybody arguing that the Under Secretary for Management of the Department of Homeland Security lacked statutory authority when she was recess appointed. Even though the same language is used in the law establishing that position as is used in Dodd-Frank and hundreds of other statutes.
January 5, 2012, 9:44 amHm. says:
Sorry for the triple post. VC is being sluggish again.
January 5, 2012, 9:46 amShelbyC says:
Well, Congress can already abolish the CIA unless Obama provides them a bacon and egg breakfast, right? And the fact that the Senate rules allow a minority filibuster doesn’t affect the constitutional question.
January 5, 2012, 9:46 amShelbyC says:
Do the other positions also say that the statutory authority of the position doesn’t vest in the official until the official is confirmed by the Senate?
January 5, 2012, 9:54 amDid Obama Offer a Faulty Rationale for Cordray Move? | The Blog on Obama: White House Dossier says:
[...] the Director of the Bureau is confirmed by the Senate in accordance with section 1011.According to the Volokh Conspiracy, a conservative legal blog: “section 1011 is a defined term which provides: ‘The [...]
January 5, 2012, 12:17 pmDilan Esper says:
This is correct. Congress can’t pass a statute to purport to eliminate the recess appointment power. If Dodd-Frank actually does this, that provision is unconstitutional and severable.
January 5, 2012, 12:28 pmloiki13 says:
Wow. You seem very concerned. Very, very concerned. I do appreciate the passive voice in the statement- “there are claims.” Really? By who? I bet I can guess.
I am sure that, inter alia, the House Republicans were just chomping at the bit to work with Obama *but for* this horrible, dastardly act. If, by “work[ing] together” you meant that Obama and the Democrats were going to accede to every demand made by the freshman GOP class, regardless of what the majority of the Senate wanted.
Good work, if you can get it.
January 5, 2012, 1:55 pmMark Buehner says:
By this logic, if the senate decided to stay in perpetual session doing their job the president should have the ability to make recess appointments regardless. The senate fulfilling its constitutional powers to advise and consent should not trump the presidents constitutional power to appoint recess appointments when the senate is not available to advise and consent. Something is clearly wrong with that line of reasoning.
January 5, 2012, 2:08 pmMark Buehner says:
Thats lunacy. The recess power is contingent on the senate not being available to fulfill its duties. The Senate is required to neglect its constitutional duties in order to allow the president to express his power granted in its absence? That way lies madness.
The vice-president is empowered to assume the powers of the president should the president be incapacitated. Does it follow that the president it required to be incapacitated in order for the VP to express his constitutional power? Who gets to wield the over-sized mallet?
January 5, 2012, 2:35 pmJon Shields says:
No one is arguing that. The constitutional argument is that the Senate cannot create a position that can be filled by a confirmed appointment but not a recess appointment. (In this case, it is irrelevant, since section 1011 uses the same language as every other statute that has had recess appointments for its positions, and section 1066 refers to section 1011 and in any case only applies to a single subtitle. But if the Senate actually tried to make a position that allowed confirmation but prohibited recess appointments, that would be a constitutional problem.)
Now, if the Senate actually wants to establish a quorum and not go on vacation, of course they can block recess appointments. They just can’t write a law saying that recess appointments are blocked regardless of the status of the Senate at the time of the appointment.
January 5, 2012, 2:56 pmJon Shields says:
Your logical leap doesn’t work. If the senate stayed in perpetual session (and actually established a quorum), there would be no argument that the recess appointment power would not work. The only argument is that “advice and consent of the senate” appearing in a statute does not bar recess appointments.
If it did, you could challenge almost every recess appointment (and associated executive actions) over the last century.
There are really two questions here. The first is over the Constitutional definition of recess (which is somewhat ambiguous). The second is over the statutory language. And it is the second we are talking about.
January 5, 2012, 3:01 pmAnother Round On CFPB Powers in Light of a Recess Appointment | Rortybomb says:
[...] My favorite meta-argument on this, from commenter Jon Shields at the Volokh Conspiracy put it: [...]
January 5, 2012, 3:05 pmShelbyC says:
You need to justify your position a little more, Dilan. The recess appointment power exists to ensure that the positions Congress creates can be filled when the Senate is not in session. If Congress wants to make the appointment power irrelevant by making the position powerless until the nominee is confirmed, why can’t they? They can abolish the position entirely, after all.
January 5, 2012, 3:22 pmmark says:
I wonder if there is any case on the validity of a law that creates an administrative agency but says the power conferred on the agency can only be exercised after a formal approval of the director by the Senate. I have no expertise in administrative law, but it seems to me that there might be a distinction between “legislative” acts, such as rule making, and “executive” acts, such as enforcing pre-existing laws. It seems it should be harder to make a recess appointment for rule-making purposes, although I think he would have the better of the argument as to merely executing the law. But again I hated admin law and don’t claim to know much about the current state thereof.
January 5, 2012, 3:25 pmHm. says:
Yes, indeed it does. Search for yourself. You will have a hard time finding a law establishing a position that doesn’t use the same boilerplate language. Dodd-Frank is no different from hundreds of other laws, insofar as appointment clauses are concerned. Compare the relevant clause with the ones I’ve posted and ones you can easily find online:
This is Section 1011. It is identical in wording to hundreds of other laws. If Richard Cordray doesn’t have full statutory authority, then no other recess appointee does, either, from here on out.
January 5, 2012, 3:47 pmJon Shields says:
There are limits to what Congress can condition actions on. For example, Congress can’t condition the power of the agency on whether or not the House (and only the House) takes a vote at a later date. (INS vs. Chadha)
It is an interesting Constitutional question. Though it doesnt appear to apply here.
January 5, 2012, 4:04 pmSenator Scott Brown Supports Obama's 'Recess' Appointments - The POH Diaries says:
[...] blog is reporting that Massachusetts Senator Scott Brown is supporting President Obama’s illegal appointment of Richard Cordray as head of the Consumer Financial Protection Bureau. Saying in a [...]
January 5, 2012, 4:52 pmA Conservative Teacher says:
Has anyone pointed out yet that the Senate actually was in session on Tuesday, hours before Obama’s ‘recess’ appointments? They were called to order at 11:01 AM. They engaged in legislative and executive business. They adjourned over an hour later after completing the session’s business. You can view the calender entry for their session at http://www.senate.gov/legislative/LIS/floor_activity/floor_activity.htm
Thus, any sort of argument regarding time frames is rendered moot. There is no way you can argue an adjournment of several hours is a ‘recess’. No way.
January 5, 2012, 5:45 pmJon Shields says:
I believe a recess is measured from end to end. They aren’t meeting again until Friday. So the recess would be three days.
While you say “no way,” Theodore Roosevelt appointed over 150 people in an inter-session recess that lasted about 10 seconds. So the timing question is not at all resolved.
Fortunately, the courts won’t need to resolve it in the abstract. It can accept Obama’s argument that a three-day technical recess is permissible for a recess appointment when the time between real sessions (with a quorum and and the ability to advise and consent) is several weeks. It can leave unresolved the question of a recess between two actual (non pro-forma) sessions three days apart.
January 5, 2012, 7:13 pmJoe says:
Martinned says:
While I appreciate your new-found enthusiasm for the recess power
I don’t know where this came from.
let’s not pretend there are all that many jobs that absolutely have to be filled within a few weeks or months. That’s what deputies and colleagues are for.
who’s pretending? there remains some that very well might be filled in that time period, not that “a few weeks or months” is what we are dealing with in many cases
January 5, 2012, 7:15 pmMJW says:
It seems to me that to the extent Senate confirmation is separate from the Advice and Consent requirement, it amounts to type of one-house veto prohibited in INS v. Chadha.
On the other hand, the recess appointment power was granted to the President out of the necessity to keep the government operating when the Senate wasn’t in session, not with the intent of altering the balance of power between the two branches by providing a method to circumvent Advice and Consent. Therefore, the use of pro-forma sessions to prevent recess appointments isn’t a power grab by the Senate; it’s an attempt to prevent an Executive power grab that was unintended by the Framers.
January 5, 2012, 7:50 pmJon Shields says:
Yet if the Senate can block the recess appointment power with pro-forma sessions, then the Senates of 1800s could have done the same during their months-long recesses.
January 5, 2012, 8:42 pmB-Rob says:
Yes, my point exactly — with a properly drafted law, the House and Senate, with the signature of the president, could abolish the CIA. But my point is that the president can circumvent a minority effort to defang the CIA (without abolishing the agency) by doing recess appointments. Nothing in the CIA’s founding statutes can trump the plain language of the Constitution. nd the plain language permits the president to make recess appointments to ANY position requiring the advice and consent of the Senate.
January 5, 2012, 8:58 pmB-Rob says:
If you can explain why this recess appointment, unlike all the thousands of others done during the history of the republic, is somehow unconstitutional, I will entertain your implicit argument that a former con law professor failed to follow the Constitution. Until then, it appears to be little more than con whining that Obama had the stones to stand up to minority GOPer obstruction, when Bush did not have the balls to stand up to majority Dem obstruction.
January 5, 2012, 9:03 pmB-Rob says:
Well of course it is! The plain language of the recess appointments clause specifically permits the President to do just that.
If the GOPers wish to avoid recess appointments in the future, they have two choices: (a) either run REAL sessions, not b.s. “pro forma” sessions when no one from the Senate is in town and no one is doing any work, or (b) actually gather enough backing to DEFEAT A NOMINEE. That would require, of course, some actual bipartisan backing . . . which the GOPers lack in this case because Cordray himself has no known opponents. The beef is not even with Cordray, who is imminently qualified to do this job. Rather, they are simply doing the bidding of the banks and pay day lenders and are trying to roadblock a duly passed statute because their paymasters don’t like any interference in their efforts to continue fleecing Americans.
January 5, 2012, 9:10 pmB-Rob says:
This is so obviously WRONG. The recess appointments clause is an exception to the Senate’s powers to offer “advisce and consent” that kicks in when the Senate is in recess. The only question is whether a Senate that (a) lacks a quorum, (b) that is not conducting ANY business, (c) that, when it conducts business, does so for only 30 seconds, (d) that is not in formal recess because the minority party refuses to admit it is in recess . . . is not “really” in recess. If you want to make the argument that there was no recess, be my guest. But would you say a print shop is “open for business” if the owner shows up, flips the lights on and off, then leaves a minute later? No . . . and you would be laughed out of any court arguing that that is a good faith showing of an intent to operate a print business. Same thing here . . . if the GOPers really want to avoid a recess, then need to keep their lazy butts in DC doing work instead of feasting on pork roast and drinking gin in their hometowns, all the while claiming they are not “really” in recess, but are in session.
January 5, 2012, 9:22 pmObama’s Recess Appointment: Why Cordray Keeps His Commission, and Survives (or Avoids) Constitutional Challenge [Update] « Submitted to a Candid World says:
[...] of the Dodd-Frank Act, which itself created the Consumer Financial Protection Bureau. According to other Volokh authors, some of the CFPB’s powers require a validly-appointed chief; if this bears out, Republicans [...]
January 5, 2012, 11:30 pmObama’s recess appointments II (Updated) | Questions and Observations says:
[...] have, however, seen other legal analyses that say otherwise. Note the word "likely" in the last sentence, [...]
January 6, 2012, 3:01 amThe Morning Links (1/5/12 ) | From the Desk of Lady Liberty says:
[...] Chancellor Obama: Instapundit » JIM TREACHER: One day, many years from now, Obama will invent a time machine. Related: This White House Thinks That It’s Above The Rules – Investors.com Also: Krauthammer: Obama’s Recess Appointments Part Of “A Long String Of Lawless Actions” | RealClearPolitics Finally: The Volokh Conspiracy » Legality of Cordray Appointment Under Dodd-Frank [...]
January 6, 2012, 7:17 amHow unconstitutional were Obama’s recess appointments? « BornLib's Blog says:
[...] Todd Zywicki Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.” [...]
January 6, 2012, 9:09 amDilan Esper says:
First, because the text of the Constitution confers the power on the President and in general powers textually delegated to another branch can’t be curtailed by Congress.
But second, I think you construe the “purpose” of the recess appointment power too narrowly. Yes, the purpose is to ensure that appointments can be made if there are congressional recesses. But one situation where that can happen is where Congress refuses to confirm a nominee when it was in session. In other words, part of the “purpose” of the recess appointment clause is not simply the practical issue of filling vacancies, but also to ensure that Congress can’t prevent the filling of vacancies that need to be filled by simply refusing to confirm. (And this is even worse than that, because this isn’t even Congress doing it. This is a Senate MINORITY, which should not have any power at all to block recess appointments in any shape or form.) So the clause creates a compromise; you don’t have to get confirmation, but they can only serve a limited time without it.
Congress in this statute, if Prof. Zywicki is right, is trying to shift the balance struck by the clause. That’s clearly unconstitutional.
January 6, 2012, 1:30 pmAdam says:
I don’t think there is any chance that a court would chose to resolve the constitutional question.
Exactly
January 6, 2012, 1:41 pmDilan Esper says:
There is not a word in the Constitution or caselaw that supports this claim. That might be the “purpose” (construed in an overly narrow way) of the power, but it’s not a condition on its use.
January 6, 2012, 1:41 pmrichard40 says:
I see sense in getting rid of recess appointments, in exchange for actually requiring an up or down vote withing a reasonable period, say 60 days. There might be rare cases where something comes up that needs more investigation before the vote, but that can be handled by allowing the senate to get 30 more days, but only by having a majority vote to grant the 30 days. Either way, any nominee for anything, would get a vote within a reasonable period. I dont think it would require a constitutional amendment either. A law, signed by the president, should do the trick. I support the filibuster power for new laws, but for appointments it does more harm than good.
January 6, 2012, 3:21 pmrichard40 says:
I would also like to see a constutional amendment for term limits for fed judges of 12 yrs, single term. But also say that if the judge is appointed to a higher level court position the 12 yrs starts over, so a fed judge appointed to appeals gets another 12, then another 12 if they go to the supreme court, then another 12 if they go to chief justice. That way the really good judges could stay around by getting higher level appointments, while the idiots would be term limited out. This is similar to the up or out tradition in the military, where if you dont get a promotion in a reasonable amount of time you have to leave.
January 6, 2012, 3:34 pmbillyjoejimbob says:
I see many posts in here from legal minds stating that Obama’s power for a recess appointment trumps a statue that says post must be confirmed with advise and consent of the Senate. This may well be irrelevant. Article 2 Section “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” SInce the House never gave consent – the Senate was will in session as far as the Constitution goes. The Senate passed the 2 month extension of FICA relief Dec. 23 per Harry Reid. It is quite obvious that there was NO recess for an appoinment to be made. We either follow the Constitution or we do not. AS Yoda said – “there is no try” !.
January 6, 2012, 4:41 pmSemper Fi
Matt Johnston says:
Here’s a question. Assuming Cordray has no power until confirmed by the Senate, does he still draw a not insubstantial paycheck?
January 6, 2012, 4:58 pmJon Shields says:
I think you missed the “more than three days” part of the clause. The Senate adjourned on Tuesday, according to the presiding Senator of the session.
January 6, 2012, 8:13 pmObama to Make Cordray Recess Appointment - Page 5 - CycloneFanatic says:
[...] [...]
January 7, 2012, 12:58 am