Is Obama's appointment of Cordray illegal?

President Barack Obama shakes hands with Richard Cordray, right, prior to speaking about the economy at Shaker Heights High School in Shaker Heights, Ohio, on Jan. 4, 2012. / SAUL LOEB/AFP/Getty Images

Yesterday President Obama named Richard Cordray director of the Consumer Financial Protection Bureau (CPFB) with what is called a "recess appointment" -- one made while Congress is in recess. He did this because Republican senators had blocked confirmation of Cordray, also a Republican and former attorney general of Ohio. They do not object to Cordray but to how the CPFB is organized. Its financing, for example, comes from the Federal Reserve, which means Congress can't exert pressure on the agency by controlling its budget.

While this type of recess appointment is a common action for presidents, this one is fuelling a lot of argument because the Senate was technically still in session. The GOP senators, fearing Mr. Obama would do this, had been holding pro-forma sessions (pretend sessions where the Senate is called into session but no work is done). Senate Democrats used the same tactic during President Bush's administration. 

These "sessions" are held every third day because traditionally Congress has had to be out of session for at least that period of time before a president can make a recess appointment. Cordray's is the first such appointment during a Senate break of fewer than three days since 1949.

Republicans and their allies who oppose the CPFB say Cordray's appointment is illegal. The U.S. Chamber of Commerce has said it is considering whether or not to sue over this. At issue is whether the president can say when Congress is or isn't in session -- a key issue when it comes to the separation of powers of the executive and legislative branches of government.

Also, even if Cordray's appointment is legal, not being confirmed by the Senate may limit the powers he has as the agency's leader. The Dodd-Frank reform bill, which created the CPFB, says it can't commence operations until after its head is confirmed by the Senate. It will be up to the courts to decide how literal that wording is and, until they do, all of the CPFB's actions will be operating under a cloud of uncertainty.

The president says he took the action because he believes the position is a vital one and because so many of his nominees have been stymied by the Senate. According to the White House, 181 nominees are pending before the Senate, with an average waiting time of 165 days.

Mr. Obama had previously found it helpful to recognize Congress' pro forma sessions as actual ones. During one of those pro-forma sessions on Dec. 23, with only two members of the Senate on the floor, both Democrats, the Senate approved by unanimous consent the extension of the 2011 payroll tax cut by two months. Hours later, the president signed the bill into law.

[gekkobear]

I think the appointment was both legal; and completely and utterly pointless.

1) There is no hard & fast rule for "when the Senate is in recess". I could argue the Senate would decided that, but it'd be an argument, not a legal ruling.

2) The law giving the power to the new department Cordray was recess appointed to lead states:
'The secretary [of the Treasury] is authorized to perform the functions of the bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011."

This department holds no power, and all power is held by the Treasury "until the Director of the Bureau is confirmed by the Senate"

That hasn't happened yet.

Feel free to argue that the specific text and wording of the l.aw holds no meaning, the President can do whatever he wants, and the President's whim and not the text of the law signed is what matters... but I wouldn't want to try to take that side in a court of law.

As soon as Cordray does anything that affects anyone anywhere in a negative manner; they sue, win, and he's head of a useless Department until either he is confirmed by the Senate, or the law is changed.

I don't see another way for this to go...

[mmt110]

Dodd-Frank REQUIRES Senate confirmation of the CFPB Director. For this reason, the recess appointment is null and void. Why would you appoint and promote someone who used state taxpayer funds to pay legal fees for state employees who illegally accessed and published a private state citizen's private records? Of all people to appoint as Director of the CFPB, arguably the most powerful agency in the federal government, Cordray is not the right fit. There is a fair and ethical principle that is lacking in Cordray. In fact, the entire federal government and American political system are woefully lacking in fair and ethical principles. Maybe Obama's appointments wouldn't be stymied if they were not so controversial. Appoint someone with ethics and there wouldn't be so much resistance. How many of us want anyone resembling a Bernie Madoff runnning any sort of show in DC? When you appoint someone who sides so severely against one segment of the population, you cannot help but meet forceful and objective resistance. Anyone read Cordray's comments the day after his appointment? Intensely scary and, unfortunately, very expected from someone on a mission to place blame squarely on the creditors for every regrettable decision made by a consumer. Who twisted your arm to sign for a 29.99% auto loan? Who paid your payments late and put you in the position where your only option was a 29.99% auto loan? Oh, sure, the creditors were the ones who said not to pay anything on time, to go over your credit limit on your credit cards, to walk away from your home because you didn't like the color of your siding, and to trade out of your car, rolling over 8K in negative equity. Same folks who also made you a mediocre student and who took away all the good employment opportunities. Same folks who put you in a yellow shirt as a youngster and scarred you for life with your 2nd grade school picture. There is never accountability and responsibility set squarely on the shoulders of the consumer who chooses to not pay their rent so they could buy a pure bred dog instead (or 22s for their car or a timeshare in Orlando or the same fancy watch that someone on the cover of their favorite magazine was wearing or the bridesmaid dress for their cousin's wedding or the new jacket/jeans/shoes/handbag they just had to have or to go out of town for your husband's oh so important rec league softball tournament). Ignorant decision making abilities cannot be cured, no matter who you choose to sue or put out of business in the process. When does the attempt to cure an individual's stupidity stop?

[Osprey4]

No, obviously it was not illegal. Was it typical of a president who seems not to know the phone number of a single member of congress? Yes.

[Legal_Scholar]

Article II, Section 3 of the Constitution states, in part: ... he [The President] may on extraordinary Occasions, convene both Houses [of Congress], or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjounment, he may adjourn then to such Time as he shall think proper;.....

So, the President can make whatever appointments he wants in the face of their intransigent inaction, and it is fully constitutional.

Finally, do you really think he hasn't tried to compromise with those hard heads on Capitol Hill? The agency in question simply consolidates in one place all the consumer protection agencies that were formerly spread out all over the government, a good thing.

[gekkobear]

Ok, so he legally appints a Director to a new Department... with the powers currently held by the treasury to be handed over... let me check the law.

"The secretary [of the Treasury] is authorized to perform the functions of the bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011."

Ok, so he's now director; and his Department will get it's power from the Treasury as soon as the Senate appoints him... which they haven't done yet.

Until then he has no power, no authority, no value, and no meaning... but Obama didn't break the law appointing him.

He also didn't do anything useful. Unless you'd like to find the part of the Constitution that clarifies that the President can ignore the specific text of a bill already signed into law, and replace the legal meaning with the whim of the President...

Does the President hold Dictatorial power to override the rule of law? Or does the text of the law win, and this Department still can't do anything?

Can you see a third way for this to go?

[credibility2]

Once again we see our president acting like there is only one branch of our government, his own. Yet another reason why he has got to go and get booted from the WH and not re-elected.

[mgbethesda]

ATR-PHD

I couldn't have said it any better myself!

[Meritous]

It is not legal to seat an appointee without a vote unless Congress has been out of session for 3 days. Obama and the Democrats held Bush and the Republicans to this rule and Obama must be held to it as well. Otherwise we must agree that there are no rules and that Obama can do anything he wants. In which case it will be time to invest in a thrown and crown for his highness.

[Norman0123]

"Republicans and their allies who oppose the CPFB say Cordray's appointment is illegal".

Aren't these the same people who brought us the two unnecessary wars under false pretenses, gutted regulations for their bankster friends to create the banking crisis and then forced the poor people to bail out the billionaires? Now they are talking about protecting consumers as illegal... Who they work for? Who is the media working for? People like that are usually locked in institutions in saner societies.

[Former_Marine_Sgt]

That doesn't matter to the blind Obama haters out there.

They only see one evil. Whether he's actually evil or not has no actual bearing on the issue. They are told to believe it, so they beleive it.

[Osprey4]

Norm, stop drinking the "unnecessary war", "gutted regulations", "bail out billionaires" Kool-Aide. OK?

[ATR-PHD]

If the GOP wants to play games with semantics then the Dems need to get down in the dirt with them. They have no good reason for obstructing this appointment than to protect the nefarious activities of their wealthy backers. It is all game playing for them and has nothing to do with doing what is right for the American people. Their only objective for the past 3 years is to prevent economic recovery and keep as many Americans as possible as miserable as possible so that they could blame the current administration and retake control of the White House. They do not care about America, they care about their own wealth and power and they are willing, even eagar to sacrifice all of us to achieve their objectives.

[PerryFender]

To lemminghunter - the "tool" here is Cantor and the TEA Party obstructionists. When an agreement is in place and a minority of a minority party throw months of negotiations in the toilet to claim "there won't be any consequence" to their actions (to which the USA lost its AAA credit rating), to hold "pro forma" sessions objecting to the structure of an agency to thwart consumer abuses because the current agencies were loaded with chronies that the corrupt parties control (who turned a blind eye to the abuses that crippled a WORLD financial establishment that still has not recovered because the corruption has not stopped nor the criminals brought to justice) although they did not object to the person being nominated - at this point, congressional leaders who are obstructing an agency's right to perform its duties by abusing the filibuster should also be brought before judicial review for treason and obstruction. There is absolutely no reason for this when the parties did not object to the appointee but the agency and lack the votes to overturn it - while their coffers are being filled with dirty money and annonomous campaign contributions (thanks SCOTUS for your wrongful opinion in Citizens United) - no, sir, you are wrong! Horribly wrong! And "lemming" you are -

[gekkobear]

You want semantics? I'll give you semantics.

The 2010 law crating this department states:
"The secretary [of the Treasury] is authorized to perform the functions of the bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011."

THAT is the law... and the Director has NOT been confirmed BY THE SENATE so he has no power.

Either you need him confirmed by the Senate, you need the law changed; or you need to claim that Obama can unilaterally take Dictatorial power, rewrite laws on a whim, and do whatever he wants without restriction.

Which of those do you think Obama will claim he can do?

I'm looking forward to the legal case; and the argument before a Judge that the specific text of a law is meaningless if the President wants to pretend it says something else.