Today, Barack Obama announced that Mr. Cordray is the new head of the CFPB by recess appointment, the following from his speech in Ohio.
Today I’m appointing Richard as America’s consumer watchdog. And that means he is going to be in charge of one thing: looking out for the best interests of American consumers. Looking out for you.
His job will be to protect families like yours from the abuses of the financial industry. His job will be to make sure that you’ve got all the information you need to make important financial decisions. Right away, he’ll start working to make sure millions of Americans are treated fairly by mortgage brokers and payday lenders and debt collectors. In fact, just this week, his agency is opening up a simple 1-800 number that you can call to make sure you’re getting a fair deal on your mortgage, and hold banks and brokers accountable if you’re not.Republicans are fuming. Sen. Spencer Bacchus called this an attack on the Constitution.
"The President's unprecedented decision to attempt to circumvent the Constitution and ignore the law he himself signed is the clearest indication yet that he has abandoned any effort to work in a bipartisan manner to strengthen accountability and oversight of this new government bureaucracy," he said.The constitutional question has been asked many times. The Congressional Research Service (CRS) last updated their information on recess appointments in 2008. The specific question, in this case, is whether the pro forma session, a meeting in which no business takes place, of the Senate prevents recess appointments. The CRS document does not address this directly.
How Long Must the Senate Be in Recess Before a President May Make a Recess Appointment? The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, the Department of Justice has offered differing views on this issue. Most recently, in 1993, a Justice Department brief implied that the President may make a recess appointment during a recess of more than three days.The Senate held a pro forma session on Tuesday and another is planned for Friday of this week. Republicans do not believe the recess appointment is legitimate.
“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,” Senate Minority Leader Mitch McConnell said in a statement.This is an interesting constitutional question. The power of the recess appointment is clearly stated in the United States Constitution, from the CRS summary:
Under the Constitution (Article II, Section 2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. Generally, the President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office. The Constitution also provides an exception to this process. When the Senate is in recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval (Article II, Section 2, clause 3).The three day rule, noted above, is not from the Constitution, but is an arbitrary designation to endeavor to balance the powers of the Executive and Legislative branches. The use of pro forma sessions to bar the Executive branch from its constitutional power is, perhaps, legitimate but goes against the spirit of the Constitution. As such, I have problem finding fault with Mr. Obama's decision to defy the Senate Republicans.
When the banking crisis happened at the end of the George W. Bush presidency, it was apparent that we needed changes in the rules. The Republican response has been to remove regulations that might safeguard the country from another economic calamity and that might safeguard individuals from big businesses and banks. The CFPB gives power to the common citizen, much to the alarm of the lobbyists and those to whom they funnel money.
Twenty-nine Democratic and eight Republican state Attorneys General wrote a letter to the leaders of the Senate urging them to confirm Mr. Cordray. Republican objections are not about the new head of the CFPB, the objections really are to protections for common citizens.
Perhaps it will be good to have a battle over this appointment before the November election. It is good for the consumer (like me) and may be good for the President's bid for reelection.