A "Recess" Appointment Leaves Unanswered Questions

January 11, 2012 9:00 AM By Candi Wolff, Executive Vice President, Global Government Affairs, Citi

President Obama's decision to "recess appoint" Richard Cordray as the first Director of the Consumer Financial Protection Bureau (CFPB) and "recess appoint" three members to the National Labor Relations Board (NLRB) during a Congressional pro forma session has set off a firestorm in Washington. Whether you believe a Congressional pro-forma session is a recess or not, five key questions now linger:

1. How will this impact other nominees? Has the White House decided they can live without their Treasury, FDIC, and OCC nominees? Early general consensus inside the Beltway seems to be that these individuals will not be confirmed any time soon.


2. To what extent will litigation impact the effectiveness of the CFPB and NLRB? Legal challenges to the appointment are likely to come from every quarter - from individuals to community and labor groups to possibly even Congress. How quickly will litigation be resolved and what impact will it have on the decisions handed down by these bureaus in the intervening periods? Will the rules, regulations, and proposals coming out of the Bureau be stuck in limbo for the foreseeable future and what impact will such uncertainty have on those who must decide how to comply with their rulings?


3. What precedent has been set? Each Administration has to weigh questions of political expedience against matters of Constitutional principle. It goes without saying that every decision made within one Administration can impact not just the next, but future Administrations as well. Has this action opened the door for future presidents to make highly controversial appointments without regard to Congressional advice and consent? Will the American people view this action with acceptance, ambivalence, or take it to be a Constitutional challenge?


4. Is bipartisanship dead in the water? If things weren't tense before, the political stakes have been upped. Republicans in Congress may now see even less reason to seek compromise between the GOP and President Obama. Add to that a hostile election-year environment and even the most non controversial piece of legislation may not make it in 2012.


5. Was this really about the NLRB? While much of the press attention focused on the President's announcement of Cordray, little attention was paid to the NLRB nominees. There is some debate in the Capitol over whether Cordray's announcement was in fact cover for the NLRB appointments. Unlike Cordray, the NLRB nominees were only sent to the Senate on December 15 - leaving the Senate no time to hold a hearing or consider the nominations prior to leaving for the holidays. However, the NLRB would not have had a quorum to approve new regulations and the President's action gave it the necessary authority - at least until the first legal challenge.

The White House, no doubt, weighed these obstacles before moving ahead with the appointment, however the ramifications of their action may be felt long after this presidency.