President Obama is under strong pressure from liberals to use his recess-appointment power during the congressional break, but doing so would break 20 years of precedent, putting him in a tough position.
Using this recess to appoint Richard Cordray to head the Consumer Financial Protection Bureau, as liberals have urged, would also contradict a brief issued by the Clinton Justice Department in 1993, which Obama’s own deputy solicitor general cited last year.
Obama could announce a decision as soon as Wednesday.
A bold move to seat one of his most important nominees would win cheers from the left but pick a nasty fight with Republican leaders at a time senior administration officials insist the president wants to work with Congress.
The Senate has scheduled pro-forma sessions every third day, which means if Obama made a recess appointment before the upper chamber reconvenes on Jan. 23, he would be violating the Clinton Justice Department’s finding that a break has to last three days to count as a recess.
“The Obama administration said a recess is more than three days. There’s no break of more than two days. We’re meeting every third day in pro forma,” said a Senate GOP leadership aide.
Senate Republicans are quick to note that Obama’s then deputy solicitor general, Neal Katyal, during Supreme Court arguments cited the Justice Department’s finding that a recess must be longer than three days.
A Congressional Research Service report released this month found the shortest recess in the last 20 years during which the president made a recess appointment was 10 days.
Liberal advocates argue Obama should not feel himself bound by precedent they view as flimsy.
They say Obama would disappoint members of his base if he did not challenge the recent precedent and fight it out in court.
Roger Hickey, co-director of Campaign for America’s Future, a liberal advocacy group, said Republicans are trying to improperly curb the powers of the Consumer Financial Protection Bureau and the National Labor Relations Board.
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“We think Obama should go ahead and take the opportunity to appoint a number of NLRB people and Cordray as well and it would be a disappointment if he did not,” Hickey said.
Obama must weigh the political benefit of using a controversial recess appointment to empower Cordray with the backlash it could bring from the powerful financial services industry, which is wary of further regulation.
“If the president is going to take this more populist confrontational tone, you think he’d want to pick a couple fights like this to prove the point and rally the activist progressives in the party,” said Bruce Cain, a political science professor and executive director of the University of California’s Washington Center.
“I can only assume as we’ve seen so often with Obama that he’s torn. He’s got this other side of him that doesn’t want to scare the business community. He wants them on his side because he wants business community to help with the economic recovery,” Cain added.
Some legal scholars agree that Obama would have a strong constitutional foundation to circumvent Republican obstruction of his nominees.
Republicans argue Obama would shatter recent custom by using a recess appointment to seat Cordray or nominees to the National Labor Relations Board, which has become a focal point of controversy. Senior GOP aides said allied lawyers would challenge it in court but acknowledge they do not know how judges would rule.
In 2004, the 11th U.S. Circuit Court of Appeals ruled the president has power to make recess appointments and did not set a minimum length of recess for such appointments to be valid.
“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today,” the court ruled in Evans v. Stephens.
Victor K. Williams, a clinical assistant professor at Catholic University of America School of Law, said Obama could make a recess appointment in a break as short as two days. The Senate’s next pro-forma session is scheduled for Friday, Jan. 6 at 11:00 am.
Williams said Obama could argue the chamber is not meeting as a deliberative body and effectively is in the midst of a five-week recess.
“If the Senate is not sitting as a deliberative body ready and willing to render advisory consent, it triggers recess-appointment authority,” he said. “The pro-forma sessions are obviously shams and the Senate is taking a five-week recess.”
Some liberal advocates urged Obama to appoint Cordray during the intersession recess consisting of the few minutes that elapsed Tuesday between the end of the first session of the 112th Congress and the start of the second. Former President Theodore Roosevelt had seized such an opportunity more than 100 years ago to recess more than 160 nominees.
Obama passed on the opportunity but Cordray’s backers say the president can still act in the next few days.
“There are a number of legal paths the administration can take to make a recess appointment, including making one during a recess of less than three days. Today was certainly not the president’s only chance to make a recess appointment,” said David Arkush, director of Public Citizen’s Congress Watch, who has pressed Obama to challenge the recent tradition of recent appointments.
Arkush noted former President Harry S. Truman recess appointed a nominee to the Civil Aeronautics Board during a recess lasting three days — from Dec. 31, 1948 to Jan. 3, 1949.
Arkush said it is “certainly possible” that Obama may not recess appoint Cordray and instead use his blocked nomination as a political weapon against Republicans.
“It’s absolutely a good issue for the president,” said Arkush. “If he wants to make it an issue, he should keep the fight at the forefront and keep the pressure on, which means the majority leader should schedule a series of votes.”