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Recently, President Obama nominated Richard Cordray to be the first head of the Consumer Financial Protection Bureau. A position created by the controversial Dodd/Frank financial reform legislation, Republicans had been blocking all appointments (notably Elizabeth Warren who was the architect of the department) in that they did not believe in the existence of the department. As a result, President Obama chose to appoint Richard Cordray through a recess appointment to avoid Senate confirmation that he believed he would not be able to secure.

However, the Republicans left the Senate opened in a pro forma session (where no business is conducted and the body is opened and closed in a matter of seconds) during the period of the appointment specifically to avoid this inevitability.

Is there any precedent indicating that this move might stand up to a legal challenge? Have there been any cases at all where the Supreme Court has ruled on the recess appointment language in the Constitution?

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    I believe the Supreme Court will be answering this soon. Someone should invite a Justice to answer this :)
    – mikeazo
    Dec 18, 2012 at 1:05
  • Just to update, this question is going before the Supreme Court today.
    – Bobson
    Jan 13, 2014 at 19:23

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In the absence of Supreme Court precedent on the topic, it appears the January 25th, 2013 ruling on this matter by the United States Court of Appeals for the D.C. Circuit will remain the definitive answer to this question unless and until the Supreme Court chooses to hear this case.

The ruling addressed 3 appointments to the National Labor Relations Board made on the same day as the Richard Cordray appointment. From the POLITICO article, in their holding, the Appeals Court said:

"[T]he President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued," the court wrote in its decision. "Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception."

So the law of the land is (at least currently), that pro forma sessions constitute real Congressional sessions for the purpose of identifying Constitutional "recesses".

In NLRB v. Canning, the Supreme Court unanimously affirmed this decision.

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    Ah. The BEST kind of working days for Congress - when NOTHING is done :) +1, good find!
    – user4012
    Jan 25, 2013 at 18:16

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