President Obama may have run afoul of the Constitution in using a recess appointment to appoint Richard Cordray as the director of the nascent Consumer Financial Protection Bureau, but the need for the bureau to take action has been growing.
Senate Republicans had blocked the appointment of Cordray, a former Ohio Attorney General, insisting that the structure of the bureau, as set out in the Dodd-Frank Wall Street Reform and Consumer Protection Act, left the CFPB with too little accountability and oversight. They insisted on a five-member board to oversee the bureau with the power to water down much of its authority. However, the decision to put the bureau inside the Federal Reserve, instead of setting it up as an independent Consumer Financial Protection Agency, had been one of the compromises made by its proponents in order to win support from Republicans in Congress.
Cordray had been the second choice to run the agency after Senate Republicans also threatened to block the confirmation of consumer protection advocate Elizabeth Warren, who is now running for Scott Brown’s Senate seat in Massachusetts. Warren had pushed for the creation of such an agency from the early days of the financial reform bill. Once Dodd-Frank was finally signed into law in 2010 after about a year of struggle and compromise, she was hand-picked to set up the bureau as a “special advisor” to Obama, allowing him to side-step the Senate confirmation process.
After the bureau was established by Warren, Obama gave up on getting her through the confirmation process amid Republican opposition and instead named Cordray as his pick last August. But despite general support for Cordray, his appointment was blocked by a filibuster in December. Senate Republicans anticipated that Obama would try to use a recess appointment to get Cordray appointed so the CFPB could begin its enforcement work, so they held a series of “pro forma” sessions during the holiday recess to keep the Senate officially in business, even though most of its members are out of town.
There was one brief interval when Obama could have made the recess appointment on Tuesday while the pro forma sessions were temporarily in transition, but he instead waited until an appearance in Shaker Heights, Ohio on Wednesday to announce the appointment. However, by waiting until a time when the pro forma sessions were technically in effect, Obama may have precipitated a constitutional challenge to Cordray’s authority to run the bureau.
Republicans were not pleased, especially after Obama also decided to make three recess appointments to fill spots on the National Labor Relations Board on Wednesday. “Just hours after he circumvented the American people by ‘recess’ appointing Richard Cordray to the CFPB, the President has upped the ante by making several additional recess appointments, this time to the NLRB,” said Senate Minority Leader Mitch McConnell, R-Ken., in a statement. “Although all of these appointments potentially raise legal and constitutional questions, the NLRB appointments are particularly egregious. Because the President waited to nominate Sharon Block and Richard Griffin until just two days before the Senate was scheduled to adjourn last month, neither has undergone a single confirmation hearing or a single day of debate by the representatives of the American people. Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But 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. 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.”
Sen. Chuck Grassley, R-Iowa, ranking member of the Judiciary Committee, also condemned Cordray’s appointment. “The President is upending years of Senate practice and legal precedent with this move,” Grassley said in a statement. “He’s interpreting advice and consent as bypass and appoint. It’s an affront to constitutional checks and balances. It’s also an affront to the principle that every agency should have accountability, which the Consumer Financial Protection Bureau lacks. The President is ignoring the longstanding advice of the Justice Department’s Office of Legal Counsel, which has found that an adjournment of ‘5 or even 10 days’ would not be sufficient for a recess appointment.”
Grassley said he planned to write to Attorney General Eric Holder to find out whether the President had asked for a new Justice Department opinion prior to making the Cordray appointment and whether the Attorney General agreed with it.
However, the White House defended the action, noting that the pro forma sessions were nothing more than a technicality and a way to prevent Obama from filling much-needed posts in government. They also pointed to the need to regulate non-bank financial institutions such as payday lenders, debt collectors, student loan providers, subprime mortgage brokers, and predatory lenders who have targeted the military and the poor.
“When Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them,” said Obama in a speech Wednesday. “I’ve got an obligation to act on behalf of the American people. And I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve. Not with so much at stake, not at this make-or-break moment for middle-class Americans. We’re not going to let that happen.”
With much of the Dodd-Frank Act still bogged down in the prolonged rule-making and report-compiling process, and with financial institutions clamoring for ways to render those regulations as toothless as possible, consumers remain in danger of predatory lending practices that continue to result in record numbers of foreclosures, many of which are based on shoddy documentation. It is not clear that Cordray will be able to do much until his agency is properly up and running, and now with possible constitutional and legal challenges, his job will probably be even harder. But the appointment at long last of a director for the CFPB is a step in the right direction, even though he may not be around for long after the November election.
