Skip to main content

President Makes 'Recess' Appointment Despite Senate Pro Forma Sessions

There appeared to be a glimmer of hope Wednesday for a more speedy appointment of two new Federal Communications Commission commissioners, given the president's challenge to Congress Wednesday in naming Richard Cordray as a recess appointment to head the new Consumer Financial Protection Bureau.

The president can bypass the Senate confirmation process during recesses. The Senate has been holding pro-forma sessions, as Congress has historically done over breaks, to prevent such recess appointments. But the president said Wedesday that White House lawyers have concluded that that those do not count and the Senate has been and continues to be in recess, which means he could name the noncontroversial nominees, Ajit Pai on the Republican side and Jessica Rosenworcel, to the commission despite the lack of a full Senate vote or threatened hold on the nominees.

Asked Wednesday whether the president would make any more recess appointments, which also include two Federal Trade Commission seats, White House press secretary Jay Carney did not say that the president would not, only saying that he did not have information on that "at this time."

"I have an obligation to act on behalf of the American people. I will not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve," the president said of challenging the Senate's pro forma sessions and making the appointment.

"[T]he president's counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks. The Constitution guarantees the president the right, provides the President the right to make appointments during Senate recesses, and the president will use that authority to make this appointment," Carney told reporters Wednsday. "Where pro forma sessions are used, as the Senate has done and plans to continue to do, simply as an attempt to prevent the president from exercising his constitutional authority, such pro forma sessions do not interrupt the recess. And I would note that this is the view of White House counsel."
At press time, the President had followed up with recess appointments of several members of the National Labor Relations Board. A White House official pointed out that the NLRB was down to 2 members and needed at least three for a quorum.
Grassley was not pleased with the President's move.
""The President is upending years of Senate practice and legal precedent with this move," he said in a statement. "He's interpreting advice and consent as bypass and appoint.  It's an affront to constitutional checks and balances...  The President is ignoring the longstanding advice of the Justice Department's Office of Legal Counsel, which has found that an adjournment of ‘5 or even 10 days' would not be sufficient for a recess appointment.  I'm planning to write to the Attorney General to ask if the President asked for a new Justice Department opinion prior to making this appointment and whether the Attorney General agrees with it.  Regardless, the President needs to make clear why there was a change in position and what rationale the White House counsel used to overturn more than 90 years of Justice Department precedent."