Court to Obama: Not So Sure About Your Recess Appointments

Posted: Dec 05, 2012 3:45 PM

Back in January, President Obama made a controversial recess appointment while the Senate was in a pro forma session, and named Richard Cordray as head of the Consumer Finance Protection Bureau. While the Senate wasn't holding meetings, it also wasn't technically adjourned, and thus many Republicans took issue with the president's initiative. They sued the Obama administration in response, and today, that case came before the U.S. Court of Appeals.

Interestingly, the bench expressed skepticism not only of the particular appointment in question, but of the practice of recess appointments generally, arguing that unless Congress has adjourned for the term, they're not totally in recess. It's an unexpectedly hardline stance -- and some argue, unrealistic -- but nevertheless, two of the three judges hearing the case seemed to be in agreement over it.

“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.

He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.

If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.

“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.

On the other hand, Griffith wasn't even sure the court's opinion was necessary, and moreover, that the case's legitimacy was undermined by the overtly partisan plaintiffs.

Judge Griffith at one point questioned why the court should be involved at all in what amounts to a dispute between two other branches of government.

“Why drag us into it?” he said.

He also questioned the lawyers challenging the recess appointments, wondering why the Senate itself wasn’t contesting Mr. Obama’s moves. Instead, only Senate Republicans, who are the minority party, have sued.

So it's hard to tell how this will pan out, and there's still the possibility that it could head to the Supremes for final arbitration -- especially if the Court of Appeals bucks precedent and sides with the Senate Republicans. Should that be the case, a presidential power could essentially be redefined in the near future; however, it's unclear whether this court will ultimately side with them or the Obama administration.