Courts Could Nix Obama Recess Appointments

Courts may not want to say what constitutes a Senate session
By Kevin Spak,  Newser Staff
Posted Jan 18, 2012 10:56 AM CST
Barack Obama's Consumer Financial Protection Bureau Appointment of Richard Cordray May Not Stand Up in Court, Legal Experts Say
In this Jan. 4, 2012 photo, President Barack Obama shakes hands with Richard Cordray, in Shaker Heights, Ohio.   (AP Photo/Haraz N. Ghanbari)

Legal experts doubt President Obama's controversial "recess appointment" of Richard Cordray will hold up in court—including some experts who've sided with him in the past, the Hill reports. "It's untested ground," says one Harvard constitutional law expert. "If I were a judge, I could write out an opinion either way. There’s no clear precedent." The Justice Department's argument is that the Senate is effectively in recess, despite the pro forma "sessions" it occasionally holds.

Most of the Senate is indeed on vacation, but judges may not want to "start saying something the Senate calls a session is not a real session because not a lot of senators are around," the Harvard expert explains. On the other hand, voiding Cordray's appointment would throw any new Consumer Financial Protection Bureau regulations he'd overseen into limbo. Three business groups have already filed lawsuits opposing the appointment, though experts say they'd have better cases if Cordray had done something already that they could sue over. (More Richard Cordray stories.)

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