Constitutional Law

How Long of a Recess Is Needed for a Recess Appointment? Obama Action Raises Constitutional Question

President Obama made four recess appointments on Wednesday in a move that raises constitutional issues and sets up a possible Supreme Court case.

Obama appointed former Ohio Attorney General Richard Cordray to head the new Consumer Financial Protection Agency and named three appointees to the National Labor Relations Board, report the New York Times and the Washington Post.

The Constitution doesn’t specify how long Congress has to be in recess before a recess appointment can be made, the Post says. Congressional Republicans had held short sessions every three days over the holidays in an effort to establish Congress was not in recess. White House lawyers, on the other hand, had concluded Congress was in recess despite the pro forma sessions, the Times says.

According to the Times, “The action by Mr. Obama immediately sparked questions of what constitutes an actual congressional recess, the legality of Mr. Obama’s move and the future of the congressional confirmation process.” The Post called the appointments “a bold act of political defiance.”

The constitutional issue could reach the Supreme Court. One possible scenario: A corporation that chafes at a new regulation issued by the consumer agency could file a lawsuit challenging Cordray’s appointment.

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