Abstract

http://ssrn.com/abstract=2205259
 
 

Footnotes (609)



 


 



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


Alexander M. Wolf


Fordham University

February 2, 2013

Fordham Law Review, Vol. 81

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.

Number of Pages in PDF File: 55

Keywords: Pro forma sessions, recess appointments, Richard Cordray, Consumer Financial Protection Bureau, CFPB, Recess Appointments Clause, National Labor Relations Board, NLRB, Constitutional law, executive power, separation of powers

Accepted Paper Series


Download This Paper

Date posted: January 22, 2013 ; Last revised: March 3, 2013

Suggested Citation

Wolf, Alexander M., Taking Back What's Theirs: The Recess Appointments Clause, Pro Forma Sessions, and a Political Tug-of-War (February 2, 2013). Fordham Law Review, Vol. 81. Available at SSRN: http://ssrn.com/abstract=2205259 or http://dx.doi.org/10.2139/ssrn.2205259

Contact Information

Alexander M. Wolf (Contact Author)
Fordham University ( email )
113 West 60th Street
New York, NY 10023
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,034
Downloads: 155
Download Rank: 111,725
Footnotes:  609

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.281 seconds