The Washington Times is reporting that the president made four controversial recess appointments in the past week. The first was the appointment of former Ohio attorney general Richard Cordray to head the newly created Consumer Financial Protection Bureau. Although Cordray was approved as a nominee, his appointment was being blocked by Senate Republicans because of larger concerns about the lack of congressional oversight of the agency.

The president also appointed three new members to the National Labor Relations Board, citing the need to fill the vacant posts in order for the board to reach a quorum. He appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and National Labor Relations counsel Terence Flynn to fill vacancies on the five-member board, giving it a full contingent for the first time in more than a year. The new appointments will now make the Board much more union-friendly at a time when critical labor issues are at stake.

For example, the Board has issued new rules that will speed up union election procedures, leading to what some conservatives denounce as "quickie elections" -- and also make it easier for workers to determine their own collective-bargaining groups. Such actions have led conservative lawmakers to accuse the board of catering to the labor movement.

The president dismissed these criticisms in a statement, saying that "the American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans. We can't wait to act to strengthen the economy and restore security for our middle class and those trying to get in it."

However, experts believe all of the new appointments will be challenged in the courts.

“What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” said Senate Minority Leader Mitch McConnell (R-TN). “This was surely not what the framers had in mind when they required the president to seek the advice and consent of the Senate in making appointments.”

The president's lawyers are being accused of playing fast and loose with the rules, and that these types of appointments can only be made when the Senate is not in session. However, House Republicans have been coming in for pro forma sessions every three days, which triggers a clause in the Constitution that requires the Senate to also come into session. In other words, Congress is not in recess and the president does not have the power to fill the posts. 

But the White House doesn't consider pro forma sessions to be actual work by Congress. Presidential spokesman Jay Carney said “the president’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks.”

Some legal authorities agree with the president, but there are precedents that suggest otherwise.

For instance, the Clinton administration successfully argued before the U.S. Supreme Court that a recess must be at least three days to trigger the recess appointment clause, a condition that is not met in this case due to the pro forma sessions.

In addition, Democrats used pro forma sessions in the past to block recess appointments by former President George Bush in both 2007 and 2008.

“I had to keep the Senate in pro-forma sessions to block the [Steven G.] Bradbury appointment. That necessarily meant no recess appointments could be made,” said the then Senate Majority Leader Harry Reid, (D-NV) in 2008.

Senator Reid refused to respond to questions by the Times as to why he changed his mind and is now backing the president's move.

The public is being warned to expect more of these types of appointments. A senior administration official, who declined to be named or quoted, told reporters this week that the president will continue to press Congress to pass his jobs bills, he will be paying increasing attention to actions he can take on his own.

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