President’s “Recess” Appointments Unconstitutional, David Rivkin Testifies

The Committee on Oversight and Government Reform chaired by Darrell Issa (R-CA) is set to begin a hearing on the morning of February 1 on President Obama’s recess appointments to the Consumer Financial Protection Bureau (CFPB) and the National Labor Relations Board (NLRB). During the hearing, titled Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments?”, constitutional attorney David Rivkin will assert that the appointments are unconstitutional. 

On January 4, 2012, President Obama made  the following “recess” appointments: Richard Cordray as Director of the CFPB and Richard Griffin, Jr., Sharon Block, and Terence F. Flynn as members of the NLRB.  At the time of the appointments, the Senate was holding a series of “pro forma” sessions.  While the U.S. Department of Justice claims that the President has the authority to make these appointments, in essence, to decide for himself when Congress is in session, David Rivkin and other constitutional law experts disagree.

“The Constitution allows the President to make recess appointments only when the Senate is in recess; it does not guarantee him the right to make one or more of such appointments,” says Rivkin in his written testimony.

According to Rivkin, the Office of Legal Counsel  “takes what was meant and written as a gap-filler or safety valve – what to do when the Senate is out of town and unable to confirm a nominee to a vital position –  and converts it into an affirmative grant of power that guarantees the President the right to make some number of appointments without the Senate’s approval.”  This will weaken Congress’ power.

The hearing is being held in Rayburn House Office Building room 2154 at 9:30 a.m. February 1.  Additional witnesses include Senator Mike Lee (R-UT), former White House advisor C. Boyden Gray, and Michael Gerhardt, Professor in Constiutional Law, University of North Carolina.

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