# 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:** 2
**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, 4:59pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/21 "2012-01-05T16:59:08Z")
> [@Martin\_Hyde](#): > > 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. I appreciate all the responses. I’m reading through them and thinking about it. I wanted to respond to the bolded section above, though. I big chunk of that blame is back on the parties – the reason why they have become so entrenched is due to gerrymandering safe districts for each party. Anyway, back to the main topic, I did read that Bush did not do this. Harry Reid successfully stopped him with the pro forma sessions. However, I don’t think the Democrats were stopping appointments to halt an agency. Where does this end, though? How many “your guy did it, too” things can we have on both sides before the government grinds to a halt? I really hate the direction this is going. This is like an arms race, or a feud. It’s no way to run a country. ---
**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, 5:07pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/22 "2012-01-05T17:07:23Z")
The Constitution requires one session per year, and the second session of the 112th Congress is scheduled to start on January 17th. Sometime before then, they need to adjourn the first session; and if everyone (except the token members needed to run the _pro forma_ sessions every three days) has left D.C., I don’t see how they’re not actually in recess, even if they didn’t pass any resolutions to that effect. ---
**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, 5:12pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/23 "2012-01-05T17:12:23Z")
> [@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? I don’t know if it’s ever been done…but I would imagine it would involve sending some notification to Congress that they were being adjourned. But President Obama is not even claiming he made the appointment by adjourning Congress, he’s saying by his interpretation Congress had already been in a state of recess. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [January 5, 2012, 5:19pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/24 "2012-01-05T17:19:24Z")
> [@SCSimmons](#): > > The Constitution requires one session per year, and the second session of the 112th Congress is scheduled to start on January 17th. Sometime before then, they need to adjourn the first session; and if everyone (except the token members needed to run the _pro forma_ sessions every three days) has left D.C., I don’t see how they’re not actually in recess, even if they didn’t pass any resolutions to that effect. I think that’s basically correct, but I’m pretty sure that the current session has to be gaveled to a close. Then the new one gaveled to open. Both happening on the 17th. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [January 5, 2012, 5:21pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/25 "2012-01-05T17:21:25Z")
> [@Martin\_Hyde](#): > > I don’t know if it’s ever been done…but I would imagine it would involve sending some notification to Congress that they were being adjourned. But President Obama is not even claiming he made the appointment by adjourning Congress, he’s saying by his interpretation Congress had already been in a state of recess. He’s not even doing that, not by his own administration’s definition of recess, which is: congress not being convened for at least three days. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 5, 2012, 5:25pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/26 "2012-01-05T17:25:33Z")
> [@magellan01](#): > > I think that’s basically correct, but I’m pretty sure that the current session has to be gaveled to a close. Then the new one gaveled to open. Both happening on the 17th. This turns the whole process into a poor joke. Giving the President recess powers means nothing if there is no recess. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 5, 2012, 5:32pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/27 "2012-01-05T17:32:43Z")
Republicans had some [conditions](http://shelby.senate.gov/public/index.cfm/newsreleases?ContentRecord_id=893bc8b0-2e73-4555-8441-d51e0ccd1d17) under which they would allow the CFPB nominee to be confirmed. Their demands were not unreasonable and, as I understand but cannot find a link for it, Obama originally agreed with the demands. Here is the short version of the changes the Republicans wanted: [Quote=link] Replace the single Director with a board to oversee the Bureau. This would prevent a single person from dominating the Bureau and provide a critical check on the Bureau’s authority. Subject the Bureau to the Congressional appropriations process. This would provide oversight and accountability to the American people on how public money is spent. Establish a safety-and-soundness check for the prudential financial regulators, who oversee the safety and soundness of financial institutions. This would help ensure that excessive regulations do not needlessly cause bank failures. [/quote] ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 5, 2012, 5:34pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/28 "2012-01-05T17:34:08Z")
Regardless of one’s view of recess appointments in general, there’s an interesting twist in this particular instance: [QUOTE=Dodd-Frank Act, 12 USC 5586] SEC. 1066. INTERIM AUTHORITY OF THE SECRETARY. (a) IN GENERAL.—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. [/QUOTE] The enabling act that created the CFPB specifically says that the secretary of the Treasury is authorized to run the new agency until the director “is confirmed by the Senate.” Arguably, therefore, a recess appointment in this case is ineffective to empower the new director. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 5, 2012, 5:35pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/29 "2012-01-05T17:35:22Z")
> [@Czarcasm](#): > > This turns the whole process into a poor joke. Giving the President recess powers means nothing if there is no recess. The whole process has been corrupted for some time. Your statement seems to suggest that Congress goes on recess to allow the President to make recess appointments. As explained above there is a legitimate reason to allow recess appointments but, like most other things, the process has been corrupted. ---
**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, 5:37pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/30 "2012-01-05T17:37:04Z")
> [@yorick73](#): > > Republicans had some [conditions](http://shelby.senate.gov/public/index.cfm/newsreleases?ContentRecord_id=893bc8b0-2e73-4555-8441-d51e0ccd1d17) under which they would allow the CFPB nominee to be confirmed. Their demands were not unreasonable and, as I understand but cannot find a link for it, Obama originally agreed with the demands. Here is the short version of the changes the Republicans wanted: Reasonable or not, the time to impose those conditions was during passage of the bill. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 5, 2012, 5:40pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/31 "2012-01-05T17:40:24Z")
> [@yorick73](#): > > Republicans had some [conditions](http://shelby.senate.gov/public/index.cfm/newsreleases?ContentRecord_id=893bc8b0-2e73-4555-8441-d51e0ccd1d17) under which they would allow the CFPB nominee to be confirmed. Their demands were not unreasonable and, as I understand but cannot find a link for it, Obama originally agreed with the demands. Here is the short version of the changes the Republicans wanted: Great solution-instead of temporarily putting a halt to Consumer Agency enforcement, this would make it pretty much a permanent halt. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 5, 2012, 5:41pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/32 "2012-01-05T17:41:25Z")
> [@yorick73](#): > > The whole process has been corrupted for some time. Your statement seems to suggest that Congress goes on recess to allow the President to make recess appointments. As explained above there is a legitimate reason to allow recess appointments but, like most other things, the process has been corrupted. By the fact that it’s a Democrat trying to do it instead of a Republican? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 5, 2012, 5:49pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/33 "2012-01-05T17:49:39Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Reasonable or not, the time to impose those conditions was during passage of the bill. I agree. The Pubs were in the minority in both houses when the law was passed. Of course they are doing everything in their power to influence implementation of the bill. Both parties do this all the time. What’s new? I think Dodd-Frank stipulated that the agency would transfer to the Fed the moment a director is sworn in and the director’s 5 year term in tenure protected. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [January 5, 2012, 5:50pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/34 "2012-01-05T17:50:55Z")
> [@Czarcasm](#): > > By the fact that it’s a Democrat trying to do it instead of a Republican? Did I say that? Don’t put words in my mouth. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 5, 2012, 5:52pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/35 "2012-01-05T17:52:52Z")
> [@yorick73](#): > > Did I say that? Don’t put words in my mouth. I didn’t, which is made evident by the fact that I placed question marks at the ends of my sentences. ---
**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, 5:54pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/36 "2012-01-05T17:54:29Z")
> [@yorick73](#): > > I agree. The Pubs were in the minority in both houses when the law was passed. Of course they are doing everything in their power to influence implementation of the bill. Both parties do this all the time. What’s new? I’m not sure any party has ever tried to stonewall an agency by preventing it from conducting business at all. ---
**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, 5:56pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/37 "2012-01-05T17:56:17Z")
> [@magellan01](#): > > He’s not even doing that, not by his own administration’s definition of recess, which is: congress not being convened for at least three days. The three days thing is based on a justice department interpretation of what constitutes a congressional recess…I think it dates back to the 1990s. It isn’t necessarily binding in any way, though. I believe it is just an executive branch interpretation of a legislative branch activity, so whatever was said during Clinton’s Presidency wouldn’t be binding on how Obama would interpret it. ---
**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, 5:58pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/38 "2012-01-05T17:58:05Z")
> [@Czarcasm](#): > > This turns the whole process into a poor joke. Giving the President recess powers means nothing if there is no recess. Trying to prevent a federal agency from operating, after it was rightfully created by statute, by using a perpetual filibuster to prevent a straight vote on the appointment is obviously against the spirit of various powers given to both branches. That being said, the President wasn’t given recess powers because it was seen as important for the President to be allowed temporary political appointments that Congress won’t approve; he was given them because for months at a time in the 18th and 19th centuries Congress would not be in session and thus the President would need some ability to make sure the government kept running during these times. ---
**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, 6:05pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/39 "2012-01-05T18:05:21Z")
> [@Tom\_Tildrum](#): > > Regardless of one’s view of recess appointments in general, there’s an interesting twist in this particular instance: > > > [@](#): > > > > Originally Posted by Dodd-Frank Act, 12 USC 5586 > > SEC. 1066. INTERIM AUTHORITY OF THE SECRETARY. > > (a) IN GENERAL.—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. > > The enabling act that created the CFPB specifically says that the secretary of the Treasury is authorized to run the new agency until the director “is confirmed by the Senate.” Arguably, therefore, a recess appointment in this case is ineffective to empower the new director. I heard them talking about this on NPR, but I hadn’t seen the exact wording. IANAL but I wonder if “is confirmed by the Senate” is simply boilerplate for “the moment when he or she is legally appointed”. It’s conceivable that that was the intent. However, that certainly doesn’t seem to be what it litereally means. It literally means “_confirmed by the Senate_”. But the President seems to think that he can do this, and Congress seems to think so also, else why try to block the recess appointment? It’ll be interesting to see how this plays out. I think it may come down to how the courts interpret that section of the bill. It may even come down to whether or not the courts think any of the challengers have standing. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 5, 2012, 6:09pm UTC](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510/40 "2012-01-05T18:09:46Z")
First of all > [@](#): > > 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. It’s Article II, Section 3 Second Is Congress recessed or adjourned? In parliamentary law, recess mean a temporary break like the one they take in Summer. Adjourned means the session is over for the year and cannot be reconvened until the next session opens. However, the Constitution uses adjournment to mean a temporary leave (so really a recess). N.B. To denote the adjounment of the session rather than a recess, the term adjournment sine die is used. However, this is not exclusive, e.g. when the Senate sat in trial on the impeachment of Andrew Johnson and the Republicans realized that they would not get a guilty verdict on any of the articles, the motion to end the trial early was for adjounment sine die. [QUOTE=Ariticle I, Section 5 edited] Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but **a smaller number may adjourn from day to day** , and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. 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. [/QUOTE] [QUOTE=Article II, Section 3] He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with \*\*Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; \*\*he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. [/QUOTE] So what does this mean? To go into recess (to use more proper parliamentary language) for more than 3 days, one House needs the permission of the other House. So how in the world does II,3 make any sense? Let’s say that Obama has a bunch of major appointments to make (SCOTUS, Cabinet, etc.) that the Reps don’t want and let’s say the filibuster is out of the picture (I’d have to check Senate Rules but I think a motion for adjounment is undebatable). Reps control the House and Dems control the Senate. The Senate wants to recess but the House Republicans realize that as soon as they do, Obama will make recess appointments so they refuse to allow the Senate to recess. Then IMO III,2 would come into play. I could also see a case where one House kept the other in session to prevent the use of the pocket veto which is more likely than blocking recess appointments. But one House cannot compel the other to adjourn and so there is no disagreement between the House of Representatives and the Senate and so II,3 is moot in this case. The real problem is like the filibuster, pro-forma sessions are perfectly legal, both in a parliamentary and a jurisprudence context. So what is the consequence for the Sen Maj Leader to walk in, realize theres no quorum and say we’ll try again tomorrow? A filibuster can be made inconvienent by forcing the other side to continue debate and to break a pro-forma session, someone from the minority side comes in and moves for a Call of the House. The members of the minority party walk in and the sergeant-at-arms is directed to arrest the members of the majority party not there, probably in their homes. [Previous page](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510.md?page=1) [Next page](https://boards.straightdope.com/t/recess-appointment-of-consumer-agency-head/608510.md?page=3)