According to Public Citizen, there’s nothing stopping the President from circumventing the Congress for recess appointments of key positions, including Elizabeth Warren for the Consumer Financial Protection Bureau. And they have the Constitutional passages to prove it.

In a blog post for the organization and a letter to the President, David Arkush writes that, contrary to received wisdom, the House cannot block adjournment of the Senate if the President uses a Constitutional measure to force that adjournment. Now, some of this is academic, because the House has said that they would not move to block their consent of a Senate adjournment under Article I, Section 5, clause 4 of the Constitution (“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting”). But Arkush points out that the President has powers in this area as well:

A little bit later—in the very same Constitution—is this passage on presidential powers:

“[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

In Article II, section 3, clause 3, the President is given the ability to adjourn Congress. So he could do so, or threaten to do so, and then make his recess appointments. There’s certainly plenty of reason for the President to play hardball on this if he wants: Republicans are holding multiple positions hostage for unrelated policy changes, and any action by the House to stop an adjournment of the Senate to block appointments (where the House has no duties) would be a major expansion of legislative power.

Keep in mind that an adjournment motion cannot be filibustered, so 50 votes in the Senate can get it done. That, combined with the Presidential power of adjournment, gives no excuse for Democrats to say that Republicans are “blocking” recess appointments. They’re most certainly not. It’s in the Constitution.

Arkush wrote a formal letter expressing this that I’ll put on the flip. This should be widely known. There’s nothing stopping the President from recess-appointing Elizabeth Warren to CFPB, Peter Diamond to the Fed, or any other qualified nominee. If the President wants to stretch executive power in the area of warmaking, the least he could do is be consistent and not even stretch but use the power granted to him under the Constitution.

President Barack Obama
1600 Pennsylvania Ave, NW
Washington, DC 20500

June 21, 2011

Dear President Obama:

On behalf of more than 225,000 Public Citizen members and supporters, I urge you to install Professor Elizabeth Warren as director of the Consumer Financial Protection Bureau (CFPB)—including by recess appointment if necessary.

Few would dispute that Professor Warren is the best candidate to lead the CFPB. She is among the nation’s leading experts on consumer financial protection. At the same time, she is no ivory-tower academic. Her expertise is complemented by an understanding of the financial problems of ordinary Americans and a passion for making markets work for them. She is also a superlative spokesperson and, in standing up the CFPB, she has shown that she is a highly competent manager and administrator.

There is no legal obstacle to making Professor Warren the CFPB’s first director. Contrary to press reports, the House of Representatives cannot hold the Senate open to block a recess appointment. When the House and Senate cannot agree on the timing of adjournment, the Constitution explicitly provides the President the power to adjourn the Congress:

[H]e may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper . . . .

U.S. Const. Art. II, § 3 (emphasis added). The use of this “adjournment power” would be particularly appropriate if the House prevents Senate adjournment in a bid to interfere with the appointment of certain public officials, a matter that the Constitution explicitly assigns to the President and the Senate.

Senate rules permit just 41 senators to block the Senate from voting on a nominee, and 44 Senate Republicans have stated that they will oppose any nominee for the CFPB unless the agency is weakened. Negotiating to weaken the CFPB is unacceptable. Unless at least four senators change their minds, thereby providing the 60 votes necessary to hold a simple majority vote on a nomination, you will need to make a recess appointment to secure a director of the CFPB.

I urge you to nominate Prof. Warren to head the CFPB and, if House obstructionism makes it necessary, to use your adjournment power so that you can appoint her during a Senate recess.

Sincerely,

David Arkush
Director
Public Citizen’s Congress Watch division

cc: The Honorable Harry Reid, Senate Majority Leader