President Obama has chosen to ignore the Constitution, decide the Senate is in recess when it is not and appoint the controversial Richard Cordray to head the new Consumer Financial Protection Bureau CFPB. Since the CFPB is a newly created agency (yes, another one) officials were waiting to begin operations until the head of the agency was appointed and confirmed. Now that Obama has installed Cordray as the director, the CFPB can move ahead with filling its vital staffing positions such as this one for an Invitation Coordinator. So, $16 trillion in debt and a falling credit rating, why not create a new agency with important and well paid positions like an official coordinator of invitations. Makes sense to me, how about you?
Let’s look at the issues swirling around the new CFPB. To begin with there is the non-recess, “recess” appointment of Cordray. Recess appointments cannot be made unless the Senate has been in recess for more than three days. This view is supported by a 1993 memo from the Clinton Justice Department. The Senate could not go into recess for more than three days because the House would not allow it based on Article I, Section 5 of the Constitution, which states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”.
The law which created the CFPB also specifically states that the CFPB director cannot assume the position, and exercise the powers of the office, without Senate confirmation. The Senate has been holding sessions every three days and has not confirmed Cordray; thus Obama is legally and constitutionally prevented from making this recess appointment. Perhaps laws and Constitutions are petty things compared to Obama’s agenda but I still believe in a nation ruled by laws instead of men.
The CFPB itself is also the subject of much controversy because it has broad and loosely defined powers which potentially allow it to regulate almost every non-bank financial transaction in the country. Republicans were holding off on Cordray’s appointment because they wanted to discuss reforming the agency’s purview and mission. Multiple business groups have voiced opposition to the CFPB as currently constituted and this was a chance for both sides to sit down, consider opposing views and respond to the public’s concerns. Rather than meet Republicans halfway, Obama decided that after 200 some odd years of existence, the country did not have time to wait for him to build a consensus.
Obama is constructing a reelection narrative of an “active” Obama running against a “do nothing” Congress. As strategies go, this is a good one; it worked for Harry Truman. Of course in order to support this narrative Obama needs Congress to play along and not actually do anything. In this context, working with Republicans to reform the agency in order to get his choice for director approved makes no sense; much better to make an end run and accuse Congress of obstructionism. I do have to hand it to Obama on this one. After all, how many folks are going to do the research and discover the truth? But hey, at least the Invitation Coordinator sounds like a sweet gig!
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