Experts debate constitutionality of Cordray’s appointment

Barack Obama

The American Enterprise Institute held a panel discussion on Tuesday to determine whether President Obama’s recent recess appointments are constitutional.

In an controversial move to overcome Senate opposition, President Obama appointed Richard Cordray to the position of director with the Consumer Financial Protection Bureau and three other individuals to the National Labor Board in January.

Four lawyers with experience in government and constitutional law served as panelists in the discussion, which was moderated by Peter J. Wallison, co-director of AEI’s financial policy studies program and former White House counsel during the Reagan administration.

Panelist Morton Rosenberg of the Constitution Project argued that because Congress was in a pro forma session, the president was in violation of the Constitution’s executive power of recess appointments, which gives the president the power to make appointments while Congress is in recess. Rosenberg added that the appointments were made as a way to create a new set of rules.

Critics of the president’s move say that the appointments are unconstitutional because they were made during the Senate’s pro forma session as a way to circumvent constitutional rules.

Panelist David Rivkin of Baker & Hostetler agreed with Rosenberg, adding that the session was not pro forma, as Congress did perform legislative duties during the session, citing the payroll tax cut extension.

Douglas Kmiec of the Pepperdine University School of Law countered by noting that the creation of pro forma sessions to prevent the executive branch from exercising its constitutional responsibilities contradicted the intended relationship between the two branches in the Constitution.

Walter Dellinger of O’Melveny & Myers sided with Kmiec, saying that from December 17, 2011, to January 23, 2012, the Senate was only in session every third day when it met for pro forma sessions, ultimately defending the constitutionality of Obama’s recess appointments.

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