A group of 39 Republican senators filed an amicus brief to join a court challenge of the Consumer Financial Protection Bureau director recess appointment.
President Obama made the appointment of Richard Cordray to the CFPB on Jan. 4 after months of a republican blockade in the senate. While Cordray was roundly believed to be qualified for the job, republicans wanted changes to the agency itself, including a five-member panel to run it instead of a single director, stronger powers for an oversight committee to veto bureau rules, and congressional control of the agency's budget.
The Department of Justice told the White House in January that it believed such an appointment while congress was in recess was legal.
The DOJ claimed the second-long pro forma sessions, where no business was ever conducted and no instructions were ever formally given from the executive branch, could not fit the definition of being "in session."
Democrats have used the pro forma sessions in the past to thwart previous President George W. Bush. In December 2007, one such session blocked an appointment of Steven Bradbury to the Office of the Legal Counsel at the DOJ. However, there has been very little legal precedent challenging the legality of using these sessions.
"I am very concerned that, in making these recess appointments, the president has chosen to ignore the constitution and disregard longstanding rules and precedents," said Sen. Saxby Chambliss, R-Ga.
Sen. Jack Reed, D-R.I. attended the pro-forma session in 2007 to block Bradbury, according to a story in the CNN archive. Reed said the president was justified when Obama recess appointed Cordray, because Congress had already approved the structure of the CFPB under the Dodd-Frank Act.
"No one disputes Richard Cordray is highly qualified to lead this agency," Reed said ina statement in January. "Republicans don't oppose Mr. Cordray on substantive grounds, they just wanted to quietly kill the new consumer watchdog."