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The Roosevelt Precedent: How to Make a Recess Appointment Without a Recess

The President clearly tried to channel Theodore Roosevelt in his speech in Osawatomie, Kansas today. He focused on fairness and the need to prevent financial elites from ripping off consumers. In one policy recommendation, he demanded that the Senate confirm Richard Cordray on Thursday to run the Consumer Financial Protection Bureay, the new federal agency dedicated to rooting out ripoff schemes and fraud. If, as expected, that confirmation vote fails to succeed, because Republican obstructionists choose to filibuster rather than providing an up-or-down vote for a nominee who has majority support, the President can again take a page from Teddy Roosevelt – by making inter-session appointments for Cordray and anyone else he sees fit to put to work in his Adminstration.

[T]his winter, Congress must adjourn — at least briefly — to inaugurate the new session of Congress. Theodore Roosevelt used such a brief intersession adjournment to ram through an appointment during his administration. From a congressional report on recess appointments:

Although President Theodore Roosevelt once made recess appointments during an intersession recess of less than one day, the shortest recess during which appointments have been made during the past 20 years was 10 days. Appointments made during short recesses (less than 30 days) have sometimes aroused controversy, and they may involve a political cost for the president.

Such an appointment would not be without political controversy — but would likely be upheld as legal given the Roosevelt precedent.

To be clear, the President doesn’t actually need to use this technicality on inter-session recess appointments. He can adjourn Congress any time he wants as per his Constitutional authority. But if the thought for the day is that the President wants to become a crusader against Wall Street elites like Teddy Roosevelt, he can start by emulating him directly.

Without a cost for obstruction, there is no reason for Republicans in the Senate to relent. That cost could easily be meted out by making the obstructionism irrelevant, at least at the level of Presidential appointments. And it would fit with this new Roosevelt paradigm.

David Dayen

David Dayen