Co-chair of the firm's Appellate and Major Motions Team David Rivkin and Litigation Partner Lee Casey published "Obama's Reckless Recess Ploy" in The Wall Street Journal on January 6.
Rivkin and Casey argue that President Obama's appointments of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) as well as three new members of the National Labor Relations Board (NLRB) are all unconstitutional. They point out that Obama's decision to fill the jobs through a pseudo-recess appointment is unlawful as the appointments require Senate confirmation and both the House of Representatives and the Senate are open.
While Rivkin and Casey submit that the Constitution does not define a "recess," they write that "a senatorial absence of more than a few days has been considered a necessary prerequisite" for a president to exercise recess-appointment power. This was not the case when Obama made his appointments. They go on to write that "the Senate is so much in session that on Dec. 23—three days after beginning its pro forma session—it passed President Obama's current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed."
They conclude that the president is doing the public more harm than good with these appointments as both the CFPB and NLRB "are regulatory agencies with profound real-world impact." Any official acts made by the appointees will likely be struck down by the courts.