We’ve heard the line from the White House over and over again: “If Congress won’t act, the president will.” Earlier this week in an attempt to make this talking point stick, the White House ignored the U.S. Senate’s constitutional role to “Advice and Consent” on four presidential nominations, including the Director of the Consumer Financial Protection Bureau (CFPB) as well as three members of the National Labor Relations Board (NLRB).
While recess appointments are within the President’s power, the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment. Article 1, Section 5 of the Constitution clearly states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess. These appointments are an affront to the Constitution--no matter how you look at this, it doesn’t pass the smell test. Ever since the news of these appointments broke, I have been drafting a House resolution disapproving of the president’s so-called recess appointments, which should be ready for introduction first thing next week.
The Administration should not be able to simply ignore another branch of government. Additionally, the White House is asserting that the Executive Branch can determine when the legislative branch is or is not in session—an interpretation that many scholars say is without precedent. The constitutionality of the appointments would most likely be decided in the courts, if a private party brings suit based on a CFPB or NLRB ruling.
In the meantime, I and many of my House colleagues have signed a letter to the president, expressing our deep disapproval of this move. I am also cosponsoring a piece of legislation that would deny pay to these recess appointees and would bar them from working for free.
While the Administration is using these appointments as an election-year ploy, there are legitimate concerns that the Consumer Financial Protection Bureau, as currently established, has no Congressional oversight and is not even subject to the appropriations process. No executive agency should be immune from the checks and balances our Founders intended.
What’s more, the NLRB appointments were jammed through by the president before the Senate even had the chance to consider the appointees. Their names were only put forward on December 15th, a mere two days before the Senate recessed for the holidays. The president is clearly out of bounds here and should not be allowed to skirt the Constitution as he pleases.