Obama’s sham constitutionalism

In a brazen display of the arrogance for which President Obama is so rightly infamous, his unprecedented “recess appointments” yesterday of Richard Cordray to head the new Consumer Financial Protection Bureau (CFPB) and of three others to serve on the National Labor Relations Board are not only unconstitutional, since the Senate is not presently in recess, but, in the case of Cordray, legally futile under the plain language of the Dodd-Frank Act that created the CFPB — a point too little noticed by media accounts of the move.

Start with the constitutional point. Article II, Section 2 of the Constitution grants the president the power “to fill up all Vacancies that may happen during the Recess of the Senate.” In the debate that has followed yesterday’s events, most of the focus has been on whether the Senate is in fact in recess. Two points bear on that question. First, Article 1, Section 5 says that “Neither House … shall, without the Consent of the other, adjourn for more than three days” — and the Republican-controlled House did not consent, precisely to block the president from making recess appointments, just as the Democratic Congress did in November 2007 and for the rest of George W. Bush’s presidency. And in both cases, members of the Senate appeared every three days to gavel the Senate into “pro forma” session. In fact, only the day before Obama acted, the Senate conducted a pro forma session, convening the second session of the 112th Congress. Moreover, no less than Obama’s most recent appointee to the Supreme Court, Elena Kagan, writing as his solicitor general on March 23, 2010 to the clerk of the Supreme Court, averred that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.”

And second, as Professor John Yoo noted yesterday, “it is up to the Senate to decide when it is in session or not.” Consistent with the separation of powers, “the President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.”

Professor Richard Epstein restates that point — “it is for the Senate and not for the President to determine whether the Senate is in session” — but then questions the very logic of recess appointments. Look at the facts here in light of Article II’s language: These vacancies did not “happen during the Recess of the Senate.” They happened when the Senate was in session, and the nominees for them were before the Senate when it was in session. But the Senate, for whatever reason, refused to confirm them.

Thus, the reason the Senate is “gaming the system” — as Obama’s apologists now cry, even as they themselves gamed it during the last administration — is because the president himself would otherwise game the system by filling a vacancy that did not “happen” during a proper Senate recess. Pointing to the founding period, when Congress was not in session over long periods and thus there was no ability to go through the usual confirmation process, Epstein concludes that “the correct construction of the provision is that no one can be appointed during the recess because there was an opportunity to work out the issue earlier. The person to whom this most powerfully applies is the nominee who has been rejected, but accurately read it would cover any substitute nominee as well.”

Here too, then, a fundamental constitutional principle is at stake: Senate confirmation is one of the basic constitutional checks on unbridled executive power. Far from the Senate, “through form, rendering a constitutional power of the executive obsolete,” as Kathryn Ruemmler, Obama’s White House counsel said yesterday, these “pro forma” sessions are securing the Senate’s advice-and-consent power, which Congress’s Article I, Section 5 adjournment power should otherwise be sufficient to do.