On January 4, 2012, President Obama made the following “recess” appointments: Richard Cordray as Director of the CFPB and Richard Griffin, Jr., Sharon Block, and Terence F. Flynn as members of the NLRB. At the time of the appointments, the Senate was holding a series of “pro forma” sessions. While the U.S. Department of Justice claims that the President has the authority to make these appointments, in essence, to decide for himself when Congress is in session, David Rivkin and other constitutional law experts disagree.
“The Constitution allows the President to make recess appointments only when the Senate is in recess; it does not guarantee him the right to make one or more of such appointments,” says Rivkin in his written testimony.
According to RIvkin, the Office of Legal Counsel “takes what was meant and written as a gap-filler or safety valve — what to do when the Senate is out-of-town and unable to confirm a nominee to a vital position — and converts it into an affirmative grant of power that guarantees the President the right to make some number of appointments without the Senate’s approval.” This will weaken Congress’ power.
Watch and discuss David Rivkin’s testimony before CA Rep. Darrell Issa, Chairman of the Committee of Oversight & Government Reform.