Obama Recess-Appointing Only in Dire Circumstances

I think we have found the unifying thread on the President’s recess appointments yesterday. He did not decide to make appointments on key financial regulatory positions, like OCC or FDIC or the Federal Reserve, and some worry that those nominees will now get blocked from confirmation as a result, though they are seen as uncontroversial. The President reserves the right to make those appointments later, but if he’s fed up with Senate obstructionism, why not rip the band-aid off now?

The reason is pretty clear. The President is making a distinction between nominees who the various agencies can do without for a spell and nominees whose seating is crucial to the functioning of the agency. The CFPB would not have full regulatory powers without a seated director, including the ability to regulate non-bank financial institutions. Some conservatives are making the argument that a reading of the Dodd-Frank law, which birthed the CFPB, demands that said director be confirmed by the Senate, but that impression is created through the sin of omission, and while the argument may be possible colorable, it’s highly unlikely that a judge would make a distinction between a recess and a regular-order appointment in that matter. So CFPB activates its non-bank authority through the seating of Richard Cordray.

Similarly, the NLRB appointments protect the survival of the NLRB itself. With Craig Becker’s previous (recess) appointment running out, the agency was left on January 1 with only two members of a five-member panel. The Supreme Court ruled in 2010 that the board could not conduct business or issue binding rulings without a quorum. So by denying any confirmations, Republicans were essentially stopping all labor law in America from being enforced. Becker got a recess appointment to prevent this circumstance in 2010. You probably notice a pattern here.

So that’s the dividing line for the Administration, as Kevin Drum explains.

if these are the only recess appointmentments [sic] he fills, then he’s making a very clear, very defensible constitutional point. He’s not merely complaining that a Senate minority is blocking his nominees. He’s arguing that it’s wrong for a Senate minority to shut down entire agencies — agencies that have been duly created by statute — by abusing its appointment power […] This is a point worth making, even if it’s arcane enough that it’s unlikely to get much public attention. Because to the extent that it does get public attention, it’s nothing but bad news for Republicans. They’ll be forced to defend a strategy of using their filibuster power not to stop legislation they don’t like, but to unilaterally nullify legislation they don’t like even after they’ve lost the vote and it’s been passed and signed into law. That’s going to be a hard case to make.

Thus these recess appointments can be reasonably seen as a middle ground between doing nothing and going nuclear by appointing every vacant position throughout the government. The President stays on solid rhetorical ground by accusing Republicans of blocking agency functionality and demanding that “we can’t wait” to act.

None of this will have much applicability in any legal fights that follow, though we probably won’t see them until CFPB or NLRB issues a ruling and that entity sues because the ruling was only possible through an “unconstitutional appointment.” That would be a far better argument for standing than just having the Senate sue, which is why the Chamber of Commerce has been more aggressive on the subject of litigation. They will argue that the recess appointment power has been abused because Congress was technically still in session. The 11th Circuit ruling on these matters back in 2004 fell on the side of the executive, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” The Supreme Court refused to review that case, so it’s the precedent right now. Of course, with this SCOTUS, you never know.

Obama Recess-Appointing Only in Dire Circumstances

I think we have found the unifying thread on the President’s recess appointments yesterday. He did not decide to make appointments on key financial regulatory positions, like OCC or FDIC or the Federal Reserve, and some worry that those nominees will now get blocked from confirmation as a result, though they are seen as uncontroversial. The President reserves the right to make those appointments later, but if he’s fed up with Senate obstructionism, why not rip the band-aid off now?

The reason is pretty clear. The President is making a distinction between nominees who the various agencies can do without for a spell and nominees whose seating is crucial to the functioning of the agency. The CFPB would not have full regulatory powers without a seated director, including the ability to regulate non-bank financial institutions. Some conservatives are making the argument that a reading of the Dodd-Frank law, which birthed the CFPB, demands that said director be confirmed by the Senate, but that impression is created through the sin of omission, and while the argument may be possible colorable, it’s highly unlikely that a judge would make a distinction between a recess and a regular-order appointment in that matter. So CFPB activates its non-bank authority through the seating of Richard Cordray.

Similarly, the NLRB appointments protect the survival of the NLRB itself. With Craig Becker’s previous (recess) appointment running out, the agency was left on January 1 with only two members of a five-member panel. The Supreme Court ruled in 2010 that the board could not conduct business or issue binding rulings without a quorum. So by denying any confirmations, Republicans were essentially stopping all labor law in America from being enforced. Becker got a recess appointment to prevent this circumstance in 2010. You probably notice a pattern here.

So that’s the dividing line for the Administration, as Kevin Drum explains.

if these are the only recess appointmentments he fills, then he’s making a very clear, very defensible constitutional point. He’s not merely complaining that a Senate minority is blocking his nominees. He’s arguing that it’s wrong for a Senate minority to shut down entire agencies — agencies that have been duly created by statute — by abusing its appointment power […] This is a point worth making, even if it’s arcane enough that it’s unlikely to get much public attention. Because to the extent that it does get public attention, it’s nothing but bad news for Republicans. They’ll be forced to defend a strategy of using their filibuster power not to stop legislation they don’t like, but to unilaterally nullify legislation they don’t like even after they’ve lost the vote and it’s been passed and signed into law. That’s going to be a hard case to make.

Thus these recess appointments can be reasonably seen as a middle ground between doing nothing and going nuclear by appointing every vacant position throughout the government. The President stays on solid rhetorical ground by accusing Republicans of blocking agency functionality and demanding that “we can’t wait” to act.

None of this will have much applicability in any legal fights that follow, though we probably won’t see them until CFPB or NLRB issues a ruling and that entity sues because the ruling was only possible through an “unconstitutional appointment.” That would be a far better argument for standing than just having the Senate sue, which is why the Chamber of Commerce has been more aggressive on the subject of litigation. They will argue that the recess appointment power has been abused because Congress was technically still in session. The 11th Circuit ruling on these matters back in 2004 fell on the side of the executive, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” The Supreme Court refused to review that case, so it’s the precedent right now. Of course, with this SCOTUS, you never know.