Obama’s Power Grab: “Recess Appointments” When There is No Recess

President Obama ignored the Senate and the Constitution in making four “recess appointments” while the Senate is still in session, defiantly stating “I refuse to take ‘no’ for an answer.”

On Wednesday, President Obama made “recess appointments” of former Ohio Attorney General Richard Cordray to head the controversial new Consumer Financial Protection Bureau (CFPB) and three members of the National Labor Relations Board. Two of the NLRB appointees had been nominated less than a month ago, giving the U.S. Senate no opportunity to even hold hearings on their nominations.

A White House Spokesman stated that “the president’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” without providing any further authority.

Yet, the Senate is still in session. The Senate has been meeting pro-forma, where the Senate meets for a short period every three days, and without the agreement of both Houses of Congress to enter into a “recess.” In fact, the appointments were made just one day after the Senate met to close the first session of the 112 Congress and open the second session.

Senate Minority Leader Mitch McConnell, immediately responded, noting the unprecedented nature of President Obama’s power grab.

This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer. Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.

House Speaker John Boehner stated:

This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department. The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our constitution.

Senators from both parties have long used pro-forma sessions of Congress to prevent recess appointments, the consensus being that “it takes a recess of at least three days before the president can use his appointment powers.”

In 2007 and 2008, Senate Majority Leader Harry Reid used pro-forma sessions in the Senate to prevent President Bush from making recess appointments. At the time, he summed up the law this way: “I had to keep the Senate in pro-forma sessions to block the [Steven G.] Bradbury appointment. That necessarily meant no recess appointments could be made.”

In addition to Senate Majority Leader Reid, the Clinton Administration stated that their must be a recess of at least three days in order to make a “recess appointment,” and in 2010 President Obama’s own Deputy Spoliator General told the U.S. Supreme Court that the three-day rule was the official legal position of the Obama Administration.

The U.S. Chamber of Commerce stated that it was “almost certain” this move by the President will be challenged in court.

As Jay Sekulow, ACLJ Chief Counsel, noted: “It is an intentional power grab that ignores the Constitution and Senate precedent, and is likely intended to achieve a showdown with Congress for political purposes. It is a dangerous game for our nation, especially if it is played merely for political gain.”

We will continue to keep you informed as the fallout from this unprecedented power grab by Precedent Obama continues to develop.