Authors for The Volokh Conspiracy — the go-to blog for legal nerds (I offer this as a very high compliment) — ask whether President Obama’s act placing Richard Cordray at the head of the Consumer Financial Protection Bureau qualifies as a valid exercise of the recess appointment power since, though recessed, Congressional Republicans have kept the chamber technically “in session” to prevent just such an appointment. It does (or should), but they’re asking the wrong question. The real question is, who’s going to stop him?
A quick review. The Constitution confers on the President the right to appoint executive officers while the Congress stands adjourned:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
U.S. Const., Art. II, § 2, cl. 3. Although Congress stands recessed, Republicans leaders have managed to gavel the chamber to order at regular intervals during the recess, on the theory that each such pro forma session interrupts the recess, thereby preventing any appointments over the legislators’ winter vacation. John Elwood’s brilliant piece — which I strongly recommend — concludes that the Constitution’s framers cared more about true sessions than merely the fabricated appearance of sessions; that Congress remains recessed; and that, therefore, President Obama’s appointment is valid. Elwood hardly stands alone. Bush’s OLC adopted the same position, at least on the op-ed pages of The Washington Post. I expect that, on the merits, Republican legislators (or interest groups) would have a hard time arguing that the pro forma trick amounts to anything other than a slick constitutional run-around. Generally, the Constitution means what it says, and we shouldn’t lightly presume that the framers would’ve simply smiled and nodded at slick little acts of legerdemain like the pro forma session.
Let’s assume for the sake of argument, though, that President Obama has actually done something shocking — aside from standing up for himself, which actually does come as a surprise. Let’s say that any federal judge would agree with Republicans, and hold President Obama’s invalid as outside of the recess appointment power. Surprisingly, this may still not matter.
The reason is, not every right has a remedy; and more to the point, no individual citizen enjoys a “right” to see their government managed effectively. See generally Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) (canvassing authorities). The only remedy to correct an unconstitutional appointment would likely be something like a writ of mandamus, but all such remaining writs incorporate the requirement that the Article III requirement that the petitioner possess “standing” — a discrete, particularized interest in the activity he would like to see performed. Marbury v. Madison, of course, famously involved a mandamus petition, but in that case the petitioner sought to have his appointment reinstated, not to have someone else’s rescinded. If no-one can claim a direct injury from Mr. Cordray’s appointment, no-one may challenge it.
Whatever exception exists may lie in the structure of the Dodd-Frank Act, which itself created the Consumer Financial Protection Bureau. According to other Volokh authors, some of the CFPB’s powers require a validly-appointed chief; if this bears out, Republicans could (theoretically) await some regulatory action from the CFPB that creates a discrete, particularized “injury,” and then sue to enjoin the action on the theory that, without a validly-appointed chief, any of the CFPB’s actions are ultra vires, since the prerequisites to the agency’s statutory authority have not been met.
Such activity may not be forthcoming, though, and by the time it is, most voters will have forgotten the afront. Separately, query whether Republicans actually want to dig in their heels on another issue favored by the 99% — responsible regulation of major financial actors — and give the President license to grandstand about both the wages of Republican obstructionism, and the need for common-sense custodianship of the American economy.
Odds are this is a fight Republicans simply lost. By changing up the play at the last minute, Obama rolled the hard six he needed, resulting in a quick, clean checkmate, and not a penalty flag in sight. And other such game metaphors.
Update: a Facebook friend directs me to Evans v. Stephens, 387 F. 3d 1220 (11th Cir. 2004) (html/pdf slip op.). There, the Court reached the merits of a Recess Appointment Challenge in the context of the recess appointment of an Article III judge. The Court discusses the jurisdictional question in note 1, where they appear to imply that recess appointment challenges, as applied to Article III judges, may be heard at the court’s discretion. Here, too, the suit was brought by litigants before the allegedly-unlawful appointee, who necessarily possess a discrete, particularized interest in the question of what authority (if any) their judge possesses. For these reasons, I don’t view Evans as necessarily foreclosing a standing argument in the non-Article III context. Note, too, that Evans‘ ultimate holding reads the appointment clause quite broadly.