Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection. Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power. President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess. The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.
Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.
On the heels of a number of recess appointments by then President George W. Bush, Mr. Tillman proposed that there is a means by which the Senate could remove a recess appointment. Professor Kalt disagreed, arguing that both constitutional and practical considerations made such a maneuver by the Senate extremely unlikely. Tillman responded, disputing the constitutional calculus offered by Kalt. Kalt’s final rejoinder expands upon objections to the “Tillman Adjournment” process.
Professors Tillman and Kalt’s colloquy on recess appointments was first published in 2007 (in volume 101 of the Colloquy). We republished the exchange in 2009 (in volume 103 of the Colloquy).
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Copyright 2011 Northwestern University
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