President Obama’s attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.
Yes, some prior recess appointments have been politically unpopular, and a few have even raised legal questions. But never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.
As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age — but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.