# Recess appointment of Consumer Agency head **URL:** \ **Category:** Great Debates\ **Created:** [January 5, 2012, 2:54pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510 "2012-01-05T14:54:13Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [January 5, 2012, 2:54pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/1 "2012-01-05T14:54:13Z")
I am very conflicted about the recess appointment that Obama made of Richard Cordray to head the Consumer Financial Protection Bureau. On the one hand, I think recess appointments are generally a bad idea, since it’s a sneaky way to bypass what could be legitimate senate concerns. In Obama’s defense, though, he’s done far fewer than his predecessors at this point in his tenure. On the other hand, when dealing with an obstructionist senate, a president’s hands are really tied. On the third hand (this is an octopus or something), the senate wasn’t technically in recess – they were holding pro forma sessions (I think specifically to block recess appointments, but not sure). This strategy was employed by Harry Reid and it stopped GWB from some recess appointments. On the fourth hand, I believe the Republicans in the senate have said that they won’t agree to anyone to head this agency, until the agency’s role is changed. This seems like dirty pool to me, an illegitimate way to change the law, which was passed in the proper way. In this case, the senate didn’t have legitimate concerns about the appointee, but was opposed to the agency in general. The proper way to address that is to have the law changed. I don’t think “jury nullification” is the proper way to run the senate. So, you have a sneaky, possibly improper (due to the pro forma sessions) recess appointment to counteract an illegitimate blocking of the implementation of a valid, constitutional law. I don’t have a debate as such, but I’m hoping to be swayed one way or the other by the people in this forum. I do not like the way this played out or the precedents set by either party here. RS ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 5, 2012, 3:21pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/2 "2012-01-05T15:21:01Z")
Heard on NPR this morning, the Pubs have been holding up a **lot** of Obama’s appointments. ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [January 5, 2012, 3:36pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/3 "2012-01-05T15:36:38Z")
This boils down to: When one party is obstructionist to the point of holding up any and all appointments the president makes, the only reason being that they want to damage the president’s standing, what should be done? One answer is, don’t do anything, and let the work of various agencies grind to a halt, thus damaging the country. The other is, use any means at the presidents disposal to get the appointments made, so that the business of the country can be conducted as it is supposed to be. I think that the choice is rather obvious. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 5, 2012, 3:40pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/4 "2012-01-05T15:40:24Z")
Basically a lot of things are happening on all sides of this that go against the common sense of government and the obvious intent of the constitution. None of it that I can see is actually unconstitutional. To me the biggest concern isn’t President Obama’s assertion of executive power at this juncture but the conversion of the Senate into a supermajority body the rest of this is really just an extension of that development. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 5, 2012, 3:40pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/5 "2012-01-05T15:40:48Z")
The Constitution gives the Prez the authority to adjourn Congress if the houses can’t agree on when to do it themselves. The House wanted to adjourn and the Senate didn’t so they could keep blocking the nomination. It might be a “dirty trick”, but it’s one explicitly authorized by the Constitution. Article 3, §2. ---
**Author:** ![Inbred\_Mm\_domesticus](https://avatars.discourse-cdn.com/v4/letter/i/aca169/32.png) [@Inbred\_Mm\_domesticus](https://boards.straightdope.com/u/Inbred_Mm_domesticus)\ **Post date:** [January 5, 2012, 3:44pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/6 "2012-01-05T15:44:06Z")
> [@RitterSport](#): > > I am very conflicted about the recess appointment that Obama made of Richard Cordray to head the Consumer Financial Protection Bureau. You shouldn’t be. I’m surprised you care (no judgement of you, but I am judging how inconsequential the decision is). > [@RitterSport](#): > > On the one hand, I think recess appointments are generally a bad idea, since it’s a sneaky way to bypass what could be legitimate senate concerns. In Obama’s defense, though, he’s done far fewer than his predecessors at this point in his tenure. I wouldn’t use the word sneaky. I heard about it on the news. It’s a President using the rules in his (and judging the role of the organization: my) favor. Your quote makes it clear: Obama does not use this tactic as often as others: he respects the Senate. > [@RitterSport](#): > > On the fourth hand, I believe the Republicans in the senate have said that they won’t agree to anyone to head this agency, until the agency’s role is changed. This seems like dirty pool to me, an illegitimate way to change the law, which was passed in the proper way. In this case, the senate didn’t have legitimate concerns about the appointee, but was opposed to the agency in general. The proper way to address that is to have the law changed. I don’t think “jury nullification” is the proper way to run the senate. You worry about its sneakiness because of legitimate concerns of the Senate but you recognize that the Senate has no legitimate concern over the appointment of the person to the consumer protection bureau. In fact, looking at the overall scheme, its the most ethical use of the recess appointment in American history. Also, no precedents were set by either party in this case. It could be argued that Obama has set a precedent for restraint. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 5, 2012, 3:56pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/7 "2012-01-05T15:56:46Z")
I can’t blame Obama for doing this, even if it doesn’t have a precedent. The Republicans basically forced his hand. He’s testing the boundaries of presidential power, but not really doing anything that wasn’t the intent of Congress anyway. But… this may wind up in the SCOTUS if someone can claim standing and wants to challenge the constitutionality of the process. ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [January 5, 2012, 3:56pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/8 "2012-01-05T15:56:57Z")
Like **RitterSport** , I have mixed feelings on this. On the fifth tentacle (the pentacle?), I do feel that they left very few options for the President. They were gaming the system to obstruct the implementation of a constitutionally enacted law. On the hexacle , he made a recess appointment during what is technically not a recess. On the heptacle, it can be argued that a pro forma session that exists solely to block recess appointments is in bad faith and really shouldn’t be counted as a session. On the octacle… but let’s not get bogged down in the octopodes metaphor. Congress has been refusing to vote on nominees for the sole purpose of blocking the implementation of the law. They’ve called pro forma sessions for the sole purpose of stopping the President from using his constitutional power of recess appointments. It strikes me that it could be argued that these sessions, during which no one is there and no legislative activity takes place, aren’t real sessions, and the President has no obligation to recognize them as such. On the other… hand, this could set a precedent, whereby future Presidents unilaterally hand out 2 year appointments with no say from Congress. I’m not totally convinced that that would happen. There would likely be political realities, and possibly some procedural realities, that would prevent it from becoming common. But the danger is there. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 5, 2012, 3:59pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/9 "2012-01-05T15:59:38Z")
To me the key point is that recess appointments are a Constitutionally mandated power of the executive to balance the “advise and consent” power of the Senate. It keeps the Senate from completely thwarting the will of the executive in appointments. By keeping the Senate in pro-forma sessions (a maneuver invented by Harry Reid), the Senate was attempting to override the balance provided by the Constitution. I see no reason to think that the Senate’s right to advise and consent is for some reason of higher priority than the President’s right to recess appoint. Therefore, I think this maneuver is perfectly allowed, and will hopefully kill this pro-forma session bullshit. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 5, 2012, 4:00pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/10 "2012-01-05T16:00:55Z")
It was OK when Bush did it; it’s OK when Obama does it. Regards, Shodan ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 5, 2012, 4:02pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/11 "2012-01-05T16:02:15Z")
> [@davidm](#): > > On the other… hand, this could set a precedent, whereby future Presidents unilaterally hand out 2 year appointments with no say from Congress. > > I’m not totally convinced that that would happen. There would likely be political realities, and possibly some procedural realities, that would prevent it from becoming common. But the danger is there. I don’t think this is a possibility for the political reasons you allude to. The president is ultimately responsible to the citizens and has to stand for re-election. If he runs roughshod over the Senate in a way that the voters disagree with then he will not be re-elected. Or, put another way, if the Senate were popular and the President unpopular right now, Obama would never have done this. As it is, there is basically no organization in American less popular than the Senate, so he has no political reason not to. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 5, 2012, 4:02pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/12 "2012-01-05T16:02:17Z")
Cite that the recess appointment is a balance of the power of the Senate to confirm appointments? I’ve never seen any such evidence, my understanding is the **sole reason** recess appointments exist is because in 1789 the Congress only met for two sessions per year with long periods of recess and during this time the President would need the practical ability to fill vacancies. It’s a relic of 18th century transportation concerns, and was not intended or designed as a check on legislative power. I’m not saying that makes its use “wrong”, but to label it as a constitutional balance is, I think, incorrect. The Senate can’t be seen to attempt to thwart a constitutional check when the check doesn’t actually exist. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 5, 2012, 4:04pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/13 "2012-01-05T16:04:08Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The Constitution gives the Prez the authority to adjourn Congress if the houses can’t agree on when to do it themselves. The House wanted to adjourn and the Senate didn’t so they could keep blocking the nomination. It might be a “dirty trick”, but it’s one explicitly authorized by the Constitution. Article 3, §2. No one would contest that, but President Obama didn’t actually adjourn the two houses. He simply said that he viewed the Senate as being in recess and that it was up to him to interpret it when it was in recess. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 5, 2012, 4:10pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/14 "2012-01-05T16:10:48Z")
> [@Martin\_Hyde](#): > > Cite that the recess appointment is a balance of the power of the Senate to confirm appointments? I’ve never seen any such evidence, my understanding is the **sole reason** recess appointments exist is because in 1789 the Congress only met for two sessions per year with long periods of recess and during this time the President would need the practical ability to fill vacancies. > > It’s a relic of 18th century transportation concerns, and was not intended or designed as a check on legislative power. I’m not saying that makes its use “wrong”, but to label it as a constitutional balance is, I think, incorrect. The Senate can’t be seen to attempt to thwart a constitutional check when the check doesn’t actually exist. Well, I’m not a lawyer. I was going more from what I read on Volokh yesterday. There was a [quote] ([Recess Appointment of Richard Cordray Despite Pro Forma Sessions - The Volokh ConspiracyThe Volokh Conspiracy](http://volokh.com/2012/01/04/recess-appointment-of-richard-cordray-despite-pro-forma-sessions/))… > [@](#): > > In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.” On review it seems you are more correct. Perhaps a better way to put it (which is what the author of that post does) is that a pro-forma session does not provide a way to advise and consent (since no business is done) so it doesn’t end the recess from the view of the Recess Appointment clause. ---
**Author:** ![SCSimmons](https://avatars.discourse-cdn.com/v4/letter/s/e495f1/32.png) [@SCSimmons](https://boards.straightdope.com/u/SCSimmons)\ **Post date:** [January 5, 2012, 4:24pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/15 "2012-01-05T16:24:52Z")
Well, recess appointments expire at the end of the next session of Congress, so if the Senate doesn’t like it, they can end their recess, call for a vote, and boot him out. Oh, but that won’t work, because if a vote were actually called, the Cordray appointment would be approved, wouldn’t it? This is just a gamesman’s countermove to the cheap trick of ‘block cloture + open _pro forma_ sessions’ that the GOP has been using to prevent nominees from ever getting voted on. There’s certainly no Constitutional issue–the Senate is in recess, so the President can make recess appointments. The _pro forma_ sessions don’t, and never have, ended the recess; they’re just the minority party trying to take advantage of a longstanding ‘gentlemen’s agreement’ where the President doesn’t make appointments during very short breaks. The moral of the story is, if you start manipulating the terms of a gentlemen’s agreement, you’re not acting like a gentleman, and the other party may start wondering why he should continue holding to it. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [January 5, 2012, 4:32pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/16 "2012-01-05T16:32:48Z")
> [@Shodan](#): > > It was OK when Bush did it; it’s OK when Obama does it. Did Bush do the same thing? I wasn’t aware he made recess appointments during pro-forma sessions, but I could be wrong. In any case, I don’t think Obama really had much of a choice. The Senate minority was pretty clear that it was blocking the fulfillment of the position because they didn’t want the relevant agency to function, not out of any concern relevant to the actual nominee. And apparently it only takes one Senator to block a vote on a nominee. The nation isn’t going to be governable if the Prez accepts that every Senator has the power to block any federal agency from functioning indefinitely. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 5, 2012, 4:35pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/17 "2012-01-05T16:35:24Z")
> [@SCSimmons](#): > > Well, recess appointments expire at the end of the next session of Congress, so if the Senate doesn’t like it, they can end their recess, call for a vote, and boot him out. Oh, but that won’t work, because if a vote were actually called, the Cordray appointment would be approved, wouldn’t it? > > This is just a gamesman’s countermove to the cheap trick of ‘block cloture + open _pro forma_ sessions’ that the GOP has been using to prevent nominees from ever getting voted on. There’s certainly no Constitutional issue–the Senate is in recess, so the President can make recess appointments. The _pro forma_ sessions don’t, and never have, ended the recess; they’re just the minority party trying to take advantage of a longstanding ‘gentlemen’s agreement’ where the President doesn’t make appointments during very short breaks. The moral of the story is, if you start manipulating the terms of a gentlemen’s agreement, you’re not acting like a gentleman, and the other party may start wondering why he should continue holding to it. This is basically what I’m saying. I will add however that the Democrats have done the same thing in very recent history. No one has been acting like a gentleman since about 2004. I will definitely blame my own party for the expansive use of the filibuster, but I think the whole country is to blame that both parties have become so entrenched in opposition to one another. I’m the first one to point to how modern day political vitriol barely holds a candle to some stuff from the past, but I do think that modern day politicians have lost their ability to actually work with the other party. The nastiness isn’t new, but the nastiness totally shutting down government in perpetuity is kind of a new, and unfortunate, thing. ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [January 5, 2012, 4:44pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/18 "2012-01-05T16:44:31Z")
> [@Shodan](#): > > It was OK when Bush did it; it’s OK when Obama does it. > > Regards, > Shodan But didn’t bush do it when Congress actually was unquestionably in recess (please correct me if I’m mistaken about that)? Whereas Obama is doing it when they are technically in session. (I can’t believe I’m defending Bush against Obama, especially since I like that the President is doing this, but really I’m just arguing the technicalities of the law.) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 5, 2012, 4:46pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/19 "2012-01-05T16:46:55Z")
> [@Martin\_Hyde](#): > > No one would contest that, but President Obama didn’t actually adjourn the two houses. He simply said that he viewed the Senate as being in recess and that it was up to him to interpret it when it was in recess. What do you think the Constitution means when it says he can adjourn Congress? Is he supposed to go in and clear out the building by main force? ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [January 5, 2012, 4:57pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/20 "2012-01-05T16:57:18Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What do you think the Constitution means when it says he can adjourn Congress? Is he supposed to go in and clear out the building by main force? But Obama didn’t adjourn Congress (I think this is one of those never used powers) - I’d assume if he did that, there would a piece of paper somewhere stating that he did so. He is apparently asserting that the pro-forma session is not enough to declare Congress is not in recess. I support the move, btw. [Next page](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510.md?page=2)