President Obama’s apparent recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) and three other individuals to the National Labor Relations Board are constitutionally suspect because Congress is not really in recess. Todd Gaziano explains:
The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise. It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred.
[The power to make recess appointments] has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration.
The CFPB is almost entirely beyond Congressional oversight, which is probably one reason why, as Mark Calabria points out, the law that created the CFPB stipulated “that authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate’. A recess appointment is not a Senate confirmation.”
Read more: “A Tyrannical Abuse of Power: Obama Attempts to Appoint Cordray to CFPB,” by Todd Gaziano, The Foundry, January 4, 2011; “Obama’s Constitutional Gamble on Consumer Finance Nomination,” by Mark Calabria, Cato-at-Liberty, January 4, 2011.