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President Obamańˇ╗s January 4, 2012, Recess Appointments: Legal Issues
David H. Carpenter (au)
The U.S. Constitution establishes two methods by which Presidents may appoint officers of the U.S.: either with the advice and consent of the Senate, or unilaterally ńˇýduring the Recess of the Senate.ńˇŁ These two constitutional provisions have long served as sources of political tension between Presidents and Congresses. At the end of the first session of the 112th Congress, the Senate had not acted upon President Obamańˇ╗s nominations of the Director to the recently established Bureau of Consumer Financial Protection (CFPB or Bureau) or of members to the National Labor Relations Board (NLRB). On Dec. 17, 2011, the Senate adopted a unanimous consent agreement that established a series of ńˇýpro formańˇŁ sessions to occur from Dec. 20, 2011, until Jan. 23, 2012, with brief recesses in between. The unanimous consent agreement established that ńˇýno businessńˇŁ would be conducted during the pro forma sessions and that the second session would begin at 12:00 p.m., Jan. 3, 2012. On Jan. 4, 2012, despite the periodic pro forma sessions of the Senate, the President, asserting his Recess Appointments Clause powers, announced his intent to appoint Richard Cordray to be Dir. of the CFPB and Terrence F. Flynn, Sharon Block, and Richard F. Griffin Jr. to be Members of the NLRB. This report analyzes the legal issues associated with the Presidentńˇ╗s asserted exercise of his Recess Appointments Clause power on Jan. 4, 2012. This is a print on demand report.
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