On January 4, 2012, President Barack Obama appointed Richard Cordray to serve as Director of the Consumer Financial Protection Bureau, and appointed three new members to the National Labor Relations Board.
However, in a unanimous three-judge decision, the Federal Appeals Court for the District of Columbia ruled that President Obama’s recess appointments to the National Labor Relations Board were unconstitutional.
A recess appointment is an appointment by the President of the United States, of a senior federal official while the United States Senate is in recess.
The United States Constitution requires that the most senior federal officers must be confirmed by the Senate before taking office. When the Senate is in recess the President frequently acts alone by making a recess appointment.
While Presidents have the absolute authority to make recess appointments without Senate approval, the question becomes, what actually constitutes a “recess”?
The problem arises when the Senate holds “pro-forma” sessions. Even though little to no work is done at many of these sessions, which may last no more then 10 seconds after the banging of the gavel, a pro-forma session counts as an actual Senate session. In this way, the session avoids being characterized as a recess.
In the past, as long as President didn’t abuse the power, Presidents and Senates interpreted “sessions” liberally, so that officials could be appointed when the Senate was empty but still expected to return for business.
There are those who argue that these pro-forma sessions are a sham and violate the spirit of the law. On the other hand as Chief Judge David B. Sentelle opined, the recess appointments would give the President “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.”
The court further stated that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the President to decide what constitutes a recess.
The issue seems certain to end up before the Supreme Court for a determination on how far the President can go in appointing individuals whose nominations may otherwise have been blocked by the Senate.