President Obama’s January 4, 2012, Recess Appointments: Legal Issues

David H. Carpenter
Legislative Attorney

Vivian S. Chu
Legislative Attorney

Alissa M. Dolan
Legislative Attorney

Todd Garvey
Legislative Attorney

The U.S. Constitution establishes two methods by which Presidents may appoint officers of the United States: either with the advice and consent of the Senate, or unilaterally “during the Recess of the Senate.” These two constitutional provisions have long served as sources of political tension between Presidents and Congresses, and the same has held true since President Obama took office.

At the end of the first session of the 112th Congress, the Senate had not acted upon the nominations of the Director to the recently established Bureau of Consumer Financial Protection (CFPB or Bureau) or of members to the National Labor Relations Board (NLRB). On December 17, 2011, the Senate adopted a unanimous consent agreement that established a series of “pro forma” sessions to occur from December 20, 2011, until January 23, 2012, with brief recesses in between. The unanimous consent agreement established that “no business” would be conducted during the pro forma sessions and that the second session would begin at 12:00 p.m., January 3, 2012.

On January 4, 2012, despite the periodic pro forma sessions of the Senate, the President, asserting his Recess Appointments Clause powers, announced his intent to appoint Richard Cordray to be Director of the CFPB and Terrence F. Flynn, Sharon Block, and Richard F. Griffin Jr. to be Members of the NLRB. The unique facts underlying the President’s January 4, 2012, recess appointments raise a number of unresolved constitutional questions regarding the scope of the Recess Appointments Clause. However, the Clause itself contains ambiguities, and with a lack of judicial precedent that may otherwise elucidate the provision, it is difficult to predict how a reviewing court would define the contours of the President’s recess appointment authority.

If the President’s recess appointments are challenged, it appears the most likely plaintiffs to satisfy the court’s standing requirements would be a private individual or association who, following the appointments, has suffered an injury as a result of some discrete action taken by the CFPB or NLRB. Were the court to proceed to the merits of the challenge, the primary question presented would likely be whether the President made the January 4 recess appointments “during a recess of the Senate.” This issue, however, appears to involve questions of separation of powers and the internal proceedings of the Senate, and may potentially be deemed to involve political questions inappropriate for judicial review and better resolved by the President and Congress. Finally, even if the recess appointments are considered constitutionally valid, it appears likely that other questions may be raised as to Director Cordray’s authority.

This report analyzes the legal issues associated with the President’s asserted exercise of his Recess Appointments Clause power on January 4, 2012. The report begins with a general legal overview of the Recess Appointments Clause. This is followed by an analysis of two legal principles, standing and the political question doctrine, which may impede a reviewing court from reaching the merits of a potential legal challenge to the appointments. The examination of these justiciability issues is followed by an analysis of the constitutional validity of the appointments; potential statutory restrictions on a recess appointee’s authority to exercise the powers of the CFPB; and how actions taken by the recess appointees could be impacted by a court ruling that the appointments are unlawful.


Date of Report: January 23, 2012
Number of Pages: 42
Order Number: R42323
Price: $29.95

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