FERC Commissioner Replacement - Or Not?

North Dakota PSC Chairman Tony Clark has been nominated by President Obama to replace former FERC Commissioner Marc Spitzer, both Republicans. At press time Commissioner Norris was nominated for a full term by the President.

So, Clark appears to be a shoe-in. Or, will he be?

Senate Republicans are incensed with the "recess" appointment by the President of Richard Cordray January 4, 2012, to head the newly established Consumer Financial Protection Bureau. GOP legislators argue that the Congress was not in recess but rather in "pro forma" session during which a few met every three days to conduct non-business matters. It is correct that the Congress did not adjourn "sine die" before lawmakers left town for last year’s holidays and into early January, so it was seen as technically in session. The Justice Department contends that pro forma sessions translate into recesses because no legislative business is conducted and therefore do not constitute legitimate sessions. However, the Congress did conduct business with the passage of the payroll tax break extension legislation.

The US Constitution regarding recess appointments is broadly written and ambiguous. Article 2, Section 2, clause 3 reads, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." This ambiguity is inviting legal challenges to Cordray’s appointment.

While this debate rages, it is unlikely that the Senate will conduct confirmation hearings or confirm anyone nominated by President Obama, Democrat or Republican.