One of the blogs I follow is that of Professor Jonathan Turley who writes a very cogent blog on legal issues usually with a progressive view of things legal.  Turey is Shapiro Professor of Law at George Washington University. He wrote an article on his blog "Res Ipsa Loquitur" criticizing the use of the power of the president to fill up vacancies when the Senate is not in session. You can read Professor Turley's comments here. I wrote a somewhat shorter version of this post in response to the professor's article. I want to elaborate a little bit more on my blog rather than on the professor's blog. It is, after all his blog and I don't want to monopolize it

As I said in that response I am having a hard time with this issue. I doubt that the appointment of Richard  Cordray via Article II Section 2 of the Constitution to be Director of the Consumer Financial Protection Bureau (CFPB) will have a lasting effect on anything since his appointment will expire at the end of the 112^th and any rules he makes as director can be overturned by the next director assuming one is nominated and confirmed by this president or any successor. It is interesting because unlike other 'independent agencies' such as the Securities Exchange Commission and the Federal Communication Commission there is no governing board of the CFPB.  The Director makes the rules and enforces them without having to get the consent of a majority of a governing board. The appointment of someone to an office with a fixed term of five years such as any director of the CFPB by recess appointment which expires at the end of the Congress  is quite different than a recess appointment of a judge or justice which while only lasting until the end of a current Congress allows the appointee to exercise the judicial power of the United States during that ‘interregnum’. The problem with judicial recess appointments of an appellate judge who does not have tenure on ‘good behavior’ is that s/he can bind future courts (as opposed to a trial judge) under the principes of stare decisis. While the appointment of  Chief Justice Rutledge via recess appointment by President Washington in 1795 may have been a lousy appointment had he gone through the confirmation process as it existed in 1795 and been issued a commission after confirmation it would not have rendered him sane or non-suicidal or any more qualified to be a justice than he was when Washiington signed his commisson. Judicial appointments via Article II, Section 2 have been common in our history. One that does strike me as a good appointment was that of Chief Justice Earl Warren who was named chief in September of 1953 while Congress was in recess. He was nominated later and confirmed by the Senate in March of 1954. It was Warren after all who engineered a unanimous court in Brown vs Board of Education which ended racial segregation in public schools.
Congress when it created the CFPB exempted it from control of both the executive and legislative branches and gave it an interesting financial base: the Federal Reserve system which has to fund it from its own earnings as a bank. Congress also amended into the act an interesting poison pill, forbidding the new agency to exercise its new rule making powers and oversight powers until a director was seated. There is some logic to this since the Director of the CFPB exercises the new powers given to the agency without having to get the approval of a governing board. This itself is an indication that the Congress (or at least some of its Beholden Members) wants the agency to be a eunuch: no director no power. This collision between the branches is most assuredly a political question and in theory at least should be worked out by the Congress and the President and, dare I add, ultimately by the People of the US in their power to retire congress critters in November. I believe the statute was designed to fail and is an example of what happens when the legislative branch is beholden to the ‘people’ ( as defined by Citizens United) who paid to send them to DC to do their bidding rather than being beholden to an electorate composed of real flesh and blood people. At any rate I seriously doubt that the courts will upend this appointment because it is clearly a dispute between co-equal branches of government and one which courts have been loathe to venture into in the past. At any rate I have no doubt that congressional shenanigans will continue. I for one will sit back and watch. Things would be so much easier if I were running the show or even if we had an electoral system that was actually responsive to the needs of the People. Therein lies the problem