An Unconstitutional Appointment to an Unconstitutional Office | The Weekly Standard

Normally, the Constitution requires the president to secure Senate confirmation before appointing cabinet secretaries and equivalent officers to lead federal agencies. But the Constitution carved out one exception to that rule: The president may appoint such an officer without Senate confirmation when the Senate is in recess. 

And that’s why President Obama’s announcement yesterday that he would use his “recess appointment” power to install Richard Cordray as the first director of the Consumer Financial Protection Bureau, a new agency created by last year's Dodd-Frank Act and vested with effectively unlimited power to regulate and punish lenders, is so controversial. The Senate is not in “recess” for purposes of the Appointments Clause.

In fact, the Senate has refused to recess precisely to deny the president the ability to evade Senate confirmation requirements for Cordray and other nominees.  Rather than recessing, the Senate has been careful not to adjourn for more than three consecutive days. That was in accordance with Congress’s and the President’s longtime understanding that no “recess” occurs, for purposes of the Constitution's Appointments Clause, when an adjournment lasts three days or less.


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