President Barack Obama made four recess appointments Wednesday, naming three new members to the National Labor Relations Board and appointing Richard Cordray to lead the Consumer Financial Protection Bureau. But the appointments may have been illegal, according to past administration statements.
Obama’s own lawyers publicly stated in a 2010 exchange with Supreme Court Chief Justice John Roberts that the president doesn’t consider a congressional recess official — meaning he can’t legally exercise his recess appointment power — until Congress has been gone for three full days.
“The recess appointment power can work in — in a recess,” Obama’s Deputy Solicitor General Neal Katyal said. “I think our office has opined the recess has to be longer than three days [to make an appointment].”
The Senate entered a recess on Tuesday, after having held a pro forma session to keep Obama from making any recess appointments. Another was planned for Friday.
By making the appointments just one day after the Senate went into a recess, Obama appears to breaking his own administration’s rules and, as scores of Republicans are quick to point out, decades of executive precedent.
According to The Hill, Obama’s move breaks from 20 years of precedent while violating a policy established under fellow Democrat and former President Bill Clinton’s administration.
During the Bush administration, Senate Majority Leader Harry Reid denounced recess appointments and conducted the same pro forma Senate sessions. It’s unclear what, if anything, Reid will say or do about Obama exhibiting a disregard for his advice.
“Also, understand this: We have had a difficult problem with the President now for some time,” Reid said in 2008. “We don’t let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.”
Obama appointed Sharon Block, Terence F. Flynn and Richard Griffin to the NLRB.
Block was the deputy assistant secretary for congressional affairs at Obama’s Labor Department and once worked for the late Massachusetts Democratic Sen. Edward Kennedy. Griffin was a lawyer for big labor unions, including the AFL-CIO and the International Union of Operating Engineers.
Flynn is a Republican lawyer specializing in the National Labor Relations Act, the law the NLRB is supposed to enforce.
Cordray was Ohio’s Attorney General from 2008 to 2010 and used the power of his office to protect three state government workers from allegations that they unlawfully used government databases to search for embarrassing information about Samuel “Joe the Plumber” Wurzelbacher.
Rick Manning, a former Bush administration official who currently serves as the communications director for Americans for Limited Government, told The Daily Caller Obama’s recess appointments raise serious legal questions.
“Obama’s outlandish disregard for his own Administration’s legal opinion regarding these constitutionally dubious appointments reveals his complete disdain for the rule of law and the Constitution’s separation of powers,” Manning said in an email.
Wyoming Republican Sen. Mike Enzi said Obama’s recess appointments are a threat to business and an affront to the Constitution.
“Once again this Administration has shown its contempt for America’s small businesses,” Enzi said. “The president has ignored the Senate’s confirmation and vetting process, ensuring that our struggling economy will soon be faced with two additional bureaucrats who will shackle America’s employers with new onerous regulations. Just look at the most recent actions by the NLRB.”
South Carolina Republican Gov. Nikki Haley had even stronger words for the president. “It is unbelievable how far this Pres. will go to keep the support of the union thugs!” Haley said in a Facebook post.
National Retail Federation senior vice president David French is also disappointed by the recess appointments. “The President’s use of recess appointments will undeniably harm the process and call into question the legitimacy of forthcoming actions,” said French.
UPDATE 6:50 p.m.: Reid has backed Obama’s decision to make the recess appoints, contradicting his previous arguments about how recess appointments are “mischievous.” A spokesperson for Reid didn’t immediately return The Daily Caller’s request for comment on whether Reid has a new, enlightened argument or is just playing partisan politics to help Obama.