McConnell: Obama’s Uncomfirmed Appointments in ‘Uncertain Legal Territory'

By Matt Cover | January 4, 2012 | 12:10pm EST

( – Senate Republican Leader Mitch McConnell (R-Ky.) said that President Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) violates the constitutional separation of powers and puts the nomination in “uncertain legal territory.”

“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people by 'recess' appointing Richard Cordray as director of the new CFPB,” McConnell said in a statement on Wednesday.

“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.”

Obama spokesman Dan Pfeiffer announced the recess appointment Wednesday, saying the Senate was using “gimmick” sessions in an attempt to block the president, tactics the White House said it would now ignore.

“The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks,” Pfeiffer wrote in a statement on the White House website. “In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running,” Pfeiffer added.

The Senate, in fact, is not in recess. It rejected a resolution of adjournment--required by the Constitution to end a congressional session--meaning that the current 112th session of Congress continues.

The pro-forma sessions Pfeiffer referred to are short, formal sessions of Congress that typically last a few minutes or less and are not intended to conduct business. They are intended to keep Congress in session, specifically for the purpose of preventing the president from making recess appointments.

Both chambers of Congress have held pro-forma sessions every three days, in order to comply with the constitutional requirement that Congress not recess for more than three days during a session without the consent of both houses.

House Speaker John Boehner (R-Ohio) called Obama’s decision on Cordray a “power grab,” saying that it would devastate the traditional balance of power between the Executive and Legislative branches.

“This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice,” Boehner said in a statement Wednesday. “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.”

Boehner’s statement pointed out that neither the House nor the Senate has formally adjourned nor consented to a recess of longer than three days.

In fact, the Constitution seems to back Boehner’s position, stating explicitly that either house of Congress can adjourn only for three days during a session: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days,” the Constitution says.

In other words, the plain language of the Constitution would seem to suggest that unless both houses of Congress agree to adjourn, they remain in session and must meet every three days.

Senator Orrin Hatch said Obama seems to be saying he can appoint anyone to any position at any time.

“The Legislative branch exists as a check and a balance on the Executive.  By opening this door, the White House is saying it can appoint any person at any time to any position it chooses without the advice and consent of the Senate.  This is not how our Republic was designed to function,” Hatch said in a statement Wednesday.

Cordray, former Attorney General of Ohio, was nominated over the summer, but was blocked by Senate Republicans who wanted to make the CFPB more accountable to Congress before it began its regulatory work.

The Senate rejected Cordray’s nomination on December 8 when it failed to gain enough votes for it to be brought to the floor.

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