According to an article appearing last week in The Hill, consumer groups are urging President Obama to end-run the Senate’s failure to confirm his nominee for Director of the CFPB, Richard Cordray, by using the presidential recess appointment power. The exercise of such a power has been made problematic by the use of “pro forma” sessions in the House to keep Congress in session and avoid any period in which there is a recess. The Senate used a similar tactic during the previous Administration (so-called “faux sessions”) to prevent President Bush from using the recess appointment power for judicial appointments.

To combat that tactic, consumer advocates point to the President’s authority under Art. II, § 3 of the Constitution to force an adjournment of Congress. One problem with this approach is that the authority in question has never before been used. Another is the proper construction of the language of the clause — “in Case of Disagreement between [both Houses of Congress], with respect to the time of Adjournment, he may adjourn them to such time as he shall think proper.” Arguably the House Republicans now, and the Senate Democrats during the Bush Administration, with their use of pro forma sessions, have the same interpretation of what constitutes an “Adjournment,” which suggests a lack of “Disagreement.” In addition, there is precedent (including congressional rules and Art. I, § 5, cl. 4) for the proposition that not being in session for three days or less is not an adjournment, thus further undermining the notion of “Disagreement.” Finally, there is potentially some incompatability between Art. II, § 3 on the one hand and, on the other, the language of Art. I.§ 7, cl. 3 (placing a “question of Adjournment” among things for which “the Concurrence of the Senate and the House of Representatives may be necessary”) and § 2 of the 20th Amendment (giving Congress by law the authority to decide when to convene).

There is an even more significant problem, however: Even if this authority were invoked, it is uncertain whether the recess appointment power extends to the circumstances of a brand new agency like the CFPB.

The Recess Appointments Clause, Art. II, § 2, cl. 3, provides, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” That sentence presents a number of legal questions, some of which have been litigated but few of which have been definitively resolved by the Supreme Court. For example, does “the Recess” refer only to the intersession recess or any recess? What constitutes a “vacancy” for purposes of the clause, i.e., in the case of the CFPB, where no Constitutionally appointed officer has ever been confirmed in office, can a “vacancy” be said to have arisen?  What impact, if any, does the Vacancies Act have on this issue? Also, must the vacancy “happen” during the recess, or does it suffice that the vacancy, which antedated the recess, still exists during the recess?

In short, if President Obama were to force a recess of Congress and then use the Recess Appointments Clause to fill the CFPB Director position, there would be ample grounds for a very interesting constitutional challenge to that exercise of Executive authority.