Case in Favor of Obama’s Recess Appointments is ‘Slam Dunk,’ Writes Tribe

by Nicole Flatow

The case that Barack Obama’s recess appointment of Richard Cordray (pictured) and three others was constitutional “ought to be a slam dunk,” writes Harvard constitutional law professor Laurence Tribe in The New York Times.

The Chamber of Commerce has already threatened to launch a court challenge to the move, but Obama’s decision to fill the top spot at the Consumer Financial Protection Bureau and three vacancies on the National Labor Relations Board has “strong support both from the text and the original purpose of the recess appointment clause,” Tribe explains.

For one thing, holding “sham sessions” every three days during which no business is conducted does nothing to change the nature of the Senate recess, Tribe writes.

As a Washington Post editorial that also takes aim at the pro forma sessions describes it:

The Constitution vests the president with the power to fill vacant executive- and judicial-branch slots when the Senate is in recess. This power should not be undermined — indeed, nullified — through the use of ploys. To argue that phantom pro forma sessions render the Senate “open for business” is to defy common sense.

Equally crucial to Obama’s defense is the nature of the vacancies that Obama filled. Tribe explains:

The N.L.R.B. cannot decide cases without at least three members, which it would have lacked without a recess appointment. And the C.F.P.B. cannot legally exercise its full statutory authority, including the regulation of credit reporting agencies and payday lenders, without a director. Some Senate Republicans vowed to filibuster any new N.L.R.B. appointments in an effort to shut down that agency, and nearly all pledged to deny any C.F.P.B. appointee an up-or-down vote unless the president agreed to weaken that new agency’s statutory powers.

The Constitution’s clear command, Tribe concludes, is “reserving the authority the president needs to carry out his basic duties,” not “deferring to partisan games and gimmicks.”

For more on the Recess Appointments Clause, see analyses by Catholic University law professor Vincent Williams here and here, and by Boston University law professor Jay Wexler here.