Congressman Jeff Miller's Newsletter January 15, 2012

In an extraordinary move that pushes the boundaries of constitutionality, the President made a number of “recess appointments” last week to fill executive branch positions, even though Congress was not in recess.  Breaking with decades of precedent and ignoring the separation of powers guaranteed by the Constitution, the President appointed Richard Cordray as Director of the newly-created Consumer Financial Protection Bureau (CFPB) and three new members of the National Labor Relations Board (NLRB), despite the Senate’s stated objection to these nominations.
 
The United States Constitution in Article II, Section 2 is explicit in requiring the advice and consent of the Senate for officers of the United States.  The President has the power to fill any vacancies that “may happen during the Recess of the Senate.”  However, the President’s recent appointments were made when the Senate was demonstrably not in recess.  Because the Constitution requires the consent of each House of Congress before either can adjourn for longer than three days, each chamber has held sessions every three days.  The Executive Branch is now maintaining that the Administration can determine if Congress is in recess and thus make appointments at any point.

This argument is absurd and is a blatant power grab by the Executive Branch.  First, long-held legal precedent accepted by both parties for more than 60 years holds that Congress must be out of session for longer than three days to make a recess appointment.  Second, the argument that the President can decide on his own when Congress is in recess is a slippery slope.  If he counts the days between sessions as “in recess,” theoretically the President could make “recess appointments” when Congress goes home at night or pauses for a few minutes between debate.  Certainly this was not the intent of the founding fathers.

I fully expect these appointments will be determined to be unconstitutional and invalidated by both the courts and the American people.  However, a court decision on this issue could take years to work its way to the U.S. Supreme Court, so my colleagues and I are taking action now. 

First, I joined in writing a letter to the President expressing our outrage at his usurpation of power by making appointments when the Senate was not in recess.  The letter focuses on the appointment of Mr. Cordray as head of the CFPB based on the Senate’s clear lack of consent to his appointment.  Not only did the President make this appointment when Congress was not in recess, but he did so knowing the Senate did not approve. 

Second, I am co-sponsoring along with more than 70 of my colleagues a Resolution of Disapproval which explicitly states the disapproval of the House of Representatives to the President’s attempts to override the legislative branch of government.  Specifically, it expresses our chamber’s belief that the CFPB and NLRB appointments took place when Congress was not in recess and were made in violation of the Constitution.

Third, I am co-sponsoring the Executive Appointment Reform Act (EARA), a bill led by Rep. Jeff Landry (R-LA) that would prohibit the payment of any salaries to recess appointees until such appointee is formally confirmed by the Senate.  This law actually exists on the books already, but includes so many exceptions that it is rendered impotent.  EARA would abolish these exceptions, preventing funds from paying the salaries of recess appointees as well as prohibiting gratuitous or voluntary service.  The bill also precludes any final regulations from the CFPB until its Director has been confirmed by the Senate. 

The appointments of CFPB Director and NLRB Members fly in the face of 60 years of consistently held legal opinion, the U.S. Congress, and the Constitution.  I am appalled at this lack of respect exhibited by the President for the separation of powers among the executive, legislative, and judicial systems of our country, and I will continue to fight these “recess appointments” or any attempt by the President to override the Constitution.