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Recess Appointments and "Vacancies"

posted by Adam Levitin

It's amazing the lengths to which Republicans are going to try to prevent the appointment of a CFPB Director.  First, the Senate is have pro forma sessions over the weekend so there won't be a recess.  And now Rep. Spencer Bachus (R-Ala.), the Chairman of the House Financial Services Committee has come out with the patently ridiculous claim that the President's Constitutional recess appointment power can only be used to fill "vacancies" and that the CFPB directorship is not "vacant" because there has never been a Director.  Bachus's evidence for this is the 1998 Federal Vacancies Reform Act.  

There's a little problem with this argument:  a Congressional statute does not determine the scope of the President's Constitutional authority.  The statute is bounded by the Constitution, not the other way around. Indeed, it's hard to believe that a 1998 statute is probative evidence of what the Framers' intended.  Rep. Bachus might do better by starting with a dictionary.  Here are some of the choice definitions I've found:  "unoccupied" (dictionary.com); ": "not occupied by an incumbent, possessor, or officer" (Merriam-Webster). 

Beyond the semantics, however, it would make no sense for the recess appointment power to be limited to positions that had previously been filled. First, there'd be no reason for the Framers to have imposed such a limitation and second, the whole purpose of the recess appointment power is to ensure that the President has the officers necessary to fulfill his duty to take care that the laws are carried out.  If Congress created a new agency and then went into recess before a nominee was confirmed, the President would be unable to execute the laws, which would frustrate the intent of Congress.  Representative Bachus's recess appointment claim just doesn't hold water.  

There's a lesson behind all of this.  Life often works hydraulically.  If you put up too much of an obstacle in one area, you'll just get circumvented. Hold up nominations forever, and you'll get recess appointments.  Saddle the FTC with Mag-Moss rulemaking and you'll get rulemaking via settlements.  Better to have up-or-down votes, win if you've got the votes and take your losses if you don't. If you can't get a majority at the polls, there are consequences in a democracy.


The art of politics is to conceal the art. The more convoluted and technical it is to parse the connection between the action/inaction and the consequences, the more likely it is that explanations will exhaust voters' attention spans.

What we need WAY more than more earnest explanations in response to blatant trollery are some good songs with poetic lyrics. Woody Guthrie good.

You mean Pretty Boy Floyd good.

Yes, as through this world I've wandered
I've seen lots of funny men;
Some will rob you with a six-gun,
And some with a fountain pen.

And as through your life you travel,
Yes, as through your life you roam,
You won't never see an outlaw
Drive a family from their home.

Bigger problem is that the OTS and OCC Directors had lapses in office. The OTS has been Vacant since 12/24/09 and the OCC, since 3/14/11 (although pending appointment now). Still makes everything those two did illegal during that time.

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