Richard Cordray
Reuters tells us that President Obama is
not going to get a chance to make a temporary recess appointment of Richard Cordray to the Consumer Financial Protection Bureau, following the GOP's filibuster of his appointment last week.
They base that assertion on this:
While presidents have the power to make temporary, or recess, appointments without lawmakers’ approval after Congress has formally adjourned, congressional aides in both parties say they don’t expect Obama will get that chance.
Don Stewart, a spokesman for Senate Minority Leader Mitch McConnell, said Majority Leader Harry Reid has kept the Senate in session on a pro-forma basis during recesses throughout the year. He anticipates the Nevada Democrat will do so again at year’s end.
“The Congress hasn’t been in recess all year, and we don’t expect we will be,” Stewart said.
Two Senate Democratic leadership aides who spoke on condition of anonymity said Reid is unlikely to end the practice of pro-forma sessions while lawmakers are back in their states until January. A single senator can be on hand to invoke the pro-forma session.
Except that's not entirely true. Because the Senate will be going into a new session in January, they will be adjourning between sessions. To double-check that, I asked expert on all things procedural, David Waldman, who confirmed:
They do have to adjourn. The first session will end, and the second will begin at some point.
They can adjourn the first session and then convene the second literally seconds later, but it has to happen. And presidents have made appointments in that theoretical period between sessions.
Coming from the GOP leadership side, that could just be a bit of gamesmanship, setting the issue to be a huge, unprecedented outrage should Obama decide to use it, the not-huge and not-unprecedented move of making a recess appointment during adjournment. On the Democratic leadership side, who knows? Maybe they don't completely understand Senate procedure, or maybe they don't think this is a smart fight to have.
But, either way, the Senate has to adjourn—if however briefly—between sessions, and President Obama would be well within his rights to make the appointment. It certainly wouldn't be a more radical move than what Republicans have done on this nomination.