On January 4, 2012, President Obama announced that he will use recess appointments to make Richard Cordray the first director of the Consumer Financial Protection Bureau (CFPB) and to fill three vacant positions on the five-member National Labor Relations Board (NLRB). Mr. Cordray’s recess appointment as head of the CFPB is particularly important to non-bank financial institutions such as payday lenders, mortgage servicers, debt collectors, credit reporting agencies, and private student lenders because the Dodd-Frank law, which created the CFPB, limited the agency’s authority over those businesses until the President appointed a director. The recess appointments of the NLRB commissioners impact most businesses that deal with labor issues because, without those appointments, the NLRB lacked a quorum and thus could not issue regulations or final orders.

President Obama’s use of the recess appointment power with these four officials implicates an unsettled area of constitutional law. The U.S. Constitution permits the President to appoint officers of the United States in two different ways. Under the Appointments Clause, Art. II, § 2, cl. 2, the President may appoint officers with the advice and consent of the Senate; through this process, the President nominates and the Senate confirms the nominee. In addition, under the Recess Appointments Clause, Art. II, § 2, cl. 3, the President unilaterally may make temporary appointments during periods when the Senate is not in session. A recess appointment lasts until the end of the next session of Congress.   

The Constitution does not specify how long Congress must be in recess before the President may use the recess appointment power. Based largely on language from the Adjournment Clause, Art. I, § 5, cl. 4, several Department of Justice filings, and some legal scholars, have concluded that the President cannot use the recess appointment power if Congress has been in recess for three days or less. Since 2007, the Senate at times has sought to prevent the President from making recess appointments by using so-called pro forma sessions, in which the Senate convenes every three days but conducts no business and adjourns within minutes. These pro forma sessions prevent the Senate from recessing for more than three days.

President Obama’s recess appointments occurred while the Senate was convening its pro forma sessions to avoid a recess of more than three days. Whether recess appointments during these brief recesses are permissible is an open constitutional question that has divided legal scholars and commentators. Businesses adversely impacted by the actions or decisions of the NLRB or the director of the CFPB should consider a constitutional challenge to these recess appointments as part of their overall legal strategy.

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