Litigation Partner David B. Rivkin testified February 1 before the House Oversight Committee on the unconstitutionality of President Obama's January 4 appointments of Richard Cordray as head of the Consumer Financial Protection Bureau (CFPB) and of three new members to the National Labor Relations Board (NLRB).
Rivkin's statement focused on Obama’s decision to fill the jobs through a pseudo-recess appointment. He explained that they are unlawful as the appointments require Senate confirmation and both the House of Representatives and the Senate were open at the time. Rivkin pointed to the Senate's passing of Obama's two-moth payroll tax holiday, which the president promptly signed, as evidence it was in session.
After describing the general problem, Rivkin discussed what was at stake when a president exercises recess-appointment power. He stated that Obama is doing the public more harm than good with these appointments as "those individuals and businesses subject to NLRB and CFPB regulations and rulings adopted during the tenure of Obama's recess appointees will challenge the legality of those measures in the courts, and will very likely succeed."
Additionally, Rivkin said, "President Obama's actions in this instance call into question, and place at risk, Congress's own rights and prerogatives."
Rivkin concluded that "one of the worst aspects of the Administration's position is its total failure to consider these constitutional concerns, much less address them properly."
Read Rivkin's entire Congressional Testimony.