In January 2012, President Obama made recess appointments of the first Director of the Consumer Financial Protection Bureau and two members of the National Labor Relations Board during a three day period when the Senate was in pro forma session. The Senate later confirmed Director Cordray to his position, resolving questions about the legality of his actions going forward. But in late June, in National Labor Relations Board v. Noel Canning, the Supreme Court unanimously declared the recess appointments to the NLRB to be unconstitutional. This potentially raises questions about the legality of actions taken by the CFPB while the Director was serving under his recess appointment.
President Obama made these recess appointments despite substantial doubts among Executive Branch lawyers, dating back to the Carter Administration, about whether the Recess Appointment Clause of the Constitution would apply during such a three-day Senate recess. The Supreme Court has definitively answered that question. Its decision that reduces the powers of all future Presidents to make recess appointments to fill vacancies that have occurred in senior leadership positions in the Executive Branch.
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