SCOTT SIMON, HOST:
This is WEEKEND EDITION from NPR News. I'm Scott Simon. President Obama took a controversial step this week in appointing Richard Cordray to head the Consumer Financial Protection Bureau during a congressional recess, bypassing any objections from some lawmakers. Republicans in the Senate object and sent a letter to the White House yesterday asking why the president - in their mind - had ignored 90 years of legal precedent. White House officials contend that it's the Republicans in Congress who ignore history. NPR's Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: A lot of people think Washington resembles a high school and politics can be a food fight. Well, here's a high-minded legal dispute that may prove them right. Turns out, the debate over Mr. Obama's new appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board comes down to the meaning of a single word: recess. White House Counsel Kathy Ruemmler.
KATHY RUEMMLER: Our view is that a pro forma session at which the Senate, by its own definition, is not conducting any business and is unavailable to provide advice and consent on the president's nominees is for all practical and functional purposes in recess.
JOHNSON: Ruemmler says those so called pro forma holiday sessions, where a lone senator appears in the empty chamber to bang the gavel and take off are just a gimmick - a gimmick that robs the president of his power to keep the government moving. She says Mr. Obama used his constitutional authority sparingly, and with great care.
RUEMMLER: There are a lot of appointees who have been languishing. These were folks who were necessary in order to make the agencies be able to function.
TODD GAZIANO: The president's defense really has no legal credibility.
JOHNSON: That's Todd Gaziano. He directs the Center for Legal and Judicial Studies at the Heritage Foundation. And he says the Senate is not in recess.
GAZIANO: There have been over 90 years of interpretation in which both branches of government have agreed that at least nine or 10 days recess is necessary, with the Senate generally taking the view that something even longer is required.
JOHNSON: Gaziano says the history of the recess appointment power dates back a long way, to a time when Senators took weeks to get back to Washington during breaks in the action. Not the case anymore with email and airplanes, he says. The U.S. Chamber of Commerce has signaled it might bring a lawsuit after Richard Cordray's Consumer Protection Bureau moves ahead with new regulations on business. Harvard Law Professor Laurence Tribe says he thinks there will certainly be a wave of litigation. But Tribe says he believes Mr. Obama, his former student, acted well within his power to keep things moving during an extended break in Congress.
LAURENCE TRIBE: I think he certainly anticipated legal actions and is on very solid ground. I mean, 12 presidents have made 285 appointments of this kind during a session since 1867.
JOHNSON: Ultimately, Tribe says, there's not much law on the issue, so the courts will need to develop:
TRIBE: Criteria for what counts as a real recess, which this, I think, clearly was and what is simply a weekend break or a routine break that has nothing to do with frustrating the operations of the executive branch.
JOHNSON: It's an issue Tribe says could make its way up to the Supreme Court. Carrie Johnson, NPR News, Washington.