Taking Back What's Theirs: The Recess Appointments Clause, Pro Forma Sessions, and a Political Tug-of-War

Abstract

This Note surveys the current landscape of the Recess Appointments Clause. With the recent recess appointments of Richard Cordray to direct the Consumer Financial Protection Bureau (CFPB) and three other individuals to join the National Labor Relations Board (NLRB), came an influx of old — and new — controversy over the President's recess appointment authority. This Note explores interpretational issues that have surrounded the Clause since its inception, as well as novel issues that have arisen with the Congress’s use of pro forma sessions in an attempt to block recess appointments and derail the executive’s agenda. The conflict over control of the appointments process is at its peak, as exemplified by the current litigation seeking to invalidate President Obama's most recent recess appointments. This Note examines the varied interpretations of the Clause, the current litigation and potential dispositions, the increasing congressional trend of using the appointments process as an obstructionist device, and the possible state of both the CFPB and the Recess Appointments Clause after litigation. Ultimately, this piece proposes a modified functionalist standard by which the validity of recess appointments should be judged. That is, if the Senate is in a truly functional recess for a period of longer than three days, then the President should be able to make a valid recess appointment. Additionally, this three-day rule can be broken in the event of an emergency that renders the Senate unable to advise and consent to a nominee at a time when a recess appointment is necessary for the uninterrupted functioning of the government.