No president has resorted to recess appointments when Congress is in session. Expect serious legal challenges to new financial regulations.
By David B. Rivkin Jr. and Lee A. Casey
President Obama’s appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.
Each of these jobs requires Senate confirmation. The president’s ability to fill them without that confirmation, using his constitutional power to “fill up vacancies that may happen during the recess of the Senate,” depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.