A Do-Nothing Appointment

Conservatives are in an uproar over President Obama’s use of a recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau.


It’s a do-nothing job. The Dodd-Frank bill vests no authority in the position until the appointee is “confirmed by the Senate.” A recess appointment is not Senate conformation, so Mr. Cordray cannot legally do anything as head of the Bureau. Unless, of course, the Senate were to confirm the appointment.

Care to guess about the possibility of a filibuster?

Has anyone in the White House actually read the Dodd-Frank law?

UDATE–Daniel Foster in The Corner agrees that the President looks unpresidential with this appointment.

Mark Calabria has some interesting points as well.


The Secretary is authorized to perform the functions of the Bureau under this part until the Director of the Bureau is confirmed by the Senate in accordance with section 5491 of this title.

–12 USC 5586(a)

UPDATE 3—Harry Reid thinks pro forma sessions only prevent Republican presidents from making recess appointments.

2008: “I had to keep the Senate in pro-forma session to block the Bradbury appointment. That necessarily meant no recess appointments could be made.”

2012: “I support President Obama’s decision.”

UPDATE 4—(H/T, PJ Tatler) Then Solicitor General Elena Kagan wrote to the Supreme Court on 26 April, 2010:

Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period. For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.

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