GOP Can't Block Recess Appointment of Elizabeth Warren

Elizabeth Warren, who chairs an oversight committee set up by Congress to oversee TARP, speaks during an interview. (photo: AP)

By David Arkush, Public Citizen

22 June 11

f you're following the story of whether President Obama will nominate Elizabeth Warren to head the Consumer Financial Protection Bureau (CFPB), you've probably heard that the Republicans found a way to block even a recess appointment. It turns out that's mistaken.

Media outlets have reported that the Republicans, despite being the minority party in the Senate, can block not only Senate confirmation by the Democratic majority (using the standard filibuster), but also a recess appointment - by stopping the Senate from adjourning. How can the minority party stop the Senate from taking a break? Press accounts haven't explained or elaborated on the point, except to report that apparently it's the House - meaning Speaker Boehner - that can hold the Senate open. That doesn't explain much.

Here's the rule:

"Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

That's Article I, section 5, clause 4 of the U.S. Constitution. You have to hand it to the House Republicans. They read the Constitution.

But they may not have read the whole thing. A little bit later - in the very same Constitution - is this passage on presidential powers:

"[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

That's Article II, section 3, clause 3 (the emphasis is mine, not the founders'). Yes, you read it correctly. If the Senate wants to adjourn and the House won't permit it, the President can adjourn both houses of Congress. That would be a fitting end to the House meddling in nominations - a power the Constitution expressly assigns to the President and the Senate, not the House.

Below is the letter I sent to President Obama today, urging him to exercise his "adjournment power" if necessary to appoint Prof. Warren.

President Barack Obama
1600 Pennsylvania Ave, NW
Washington, DC 20500

June 21, 2011

Dear President Obama:

On behalf of more than 225,000 Public Citizen members and supporters, I urge you to install Professor Elizabeth Warren as director of the Consumer Financial Protection Bureau (CFPB) - including by recess appointment if necessary.

Few would dispute that Professor Warren is the best candidate to lead the CFPB. She is among the nation's leading experts on consumer financial protection. At the same time, she is no ivory-tower academic. Her expertise is complemented by an understanding of the financial problems of ordinary Americans and a passion for making markets work for them. She is also a superlative spokesperson and, in standing up the CFPB, she has shown that she is a highly competent manager and administrator.

There is no legal obstacle to making Professor Warren the CFPB's first director. Contrary to press reports, the House of Representatives cannot hold the Senate open to block a recess appointment. When the House and Senate cannot agree on the timing of adjournment, the Constitution explicitly provides the President the power to adjourn the Congress:

"[H]e may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper...."

U.S. Const. Art. II, § 3 (emphasis added). The use of this "adjournment power" would be particularly appropriate if the House prevents Senate adjournment in a bid to interfere with the appointment of certain public officials, a matter that the Constitution explicitly assigns to the President and the Senate.

Senate rules permit just 41 senators to block the Senate from voting on a nominee, and 44 Senate Republicans have stated that they will oppose any nominee for the CFPB unless the agency is weakened. Negotiating to weaken the CFPB is unacceptable. Unless at least four senators change their minds, thereby providing the 60 votes necessary to hold a simple majority vote on a nomination, you will need to make a recess appointment to secure a director of the CFPB.

I urge you to nominate Prof. Warren to head the CFPB and, if House obstructionism makes it necessary, to use your adjournment power so that you can appoint her during a Senate recess.

Sincerely,

David Arkush
Director
Public Citizen's Congress Watch division

cc: The Honorable Harry Reid, Senate Majority Leader