Iain, we’re heading for the “un” trifecta here. Not only was the creation of the CFPB unwise, and the appointment of Cordray to head it unconstitutional, but it looks like Cordray actually performing his duties would be unlawful, thanks to some unusual language in Dodd-Frank, of all places. Mark Calabria explains at Cato:
More importantly the “recess” appointment of Cordray doesn’t solve the President’s problem. The Dodd-Frank Act is very clear, even a law professor can probably under this section, that authorities under the Act remain with the Treasury Secretary until the Director is “confirmed by the Senate”. A recess appointment is not a Senate confirmation. Now don’t ask me why Dodd and Frank included such unusual language, they could have just given the Bureau the new authorities, but they didn’t. So even with this appointment, the CFPB won’t be able to go after all those non-banks, like the pay-day lenders and check-cashiers that caused the financial crisis (oh wait, those industries didn’t have anything to do with the crisis).
Is it safe to say this whole affair makes Mr. Obama look very unpresidential?
When have silly laws stopped him before?
Reply to this commentLinkReport AbuseClearly, the smartest, bestest Prez'nit EVAH. Fore [sic] more years!
Cordially...
Reply to this commentLinkReport AbuseIf he is willing to walk over the Constitution to make the appointment, why should we believe minutia within Dodd-Frank will stop him?
Reply to this commentLinkReport Abusecan't wait for Fish to explain why this is wrong ...
Reply to this commentLinkReport AbuseThere is another facet of this. Is a recess appointment legitimate at this point? Is it not the case that the Senate is actually still in session, employing pro forma sessions. External Link
It appears there may be at least three dimensions to the constitutional problems with Obama's latest adventure into lawlessness.
Reply to this commentLinkReport AbuseHey, he won, remember?
Reply to this commentLinkReport AbuseSo did Nixon.
Reply to this commentLinkReport AbuseCan't Obama avoid this problem by having Geithner bless the regulations formulated by Cordray?
Reply to this commentLinkReport AbuseWhy bother with Cordray at all, then?
Reply to this commentLinkReport AbuseHey, he won, remember?
Reply to this commentLinkReport Abuse-and I really really mean it this time.
Reply to this commentLinkReport AbuseWhether or not the language of the constitution is interpreted by Obots to defend this appointment, Obama's decision to make the appointment in an irregular manner does reveal the mindset of his administration; if there is a legal impediment, he will go around it. He has no respect for constitutional separation of powers and holds the sovereign people in disdain.
In fact - when has Obama behaved in a presidential manner? I mean, in a manner that shows he respects and represents all his people - even those who disagree with him?
Reply to this commentLinkReport AbuseThe peculiarities of Dodd-Frank aside, why do you find recess appointments so appalling? If a blanket refusal to bring nominees to votes is the procedural prerogative of the congressional opposition, the recess appointment is the president's. George W. Bush made 171 recess appointments. The Senate's pro forma sessions during the recess, and Obama's argument that they do not break the recess, are simply more procedural jostling. It's kind of weird to invest pretty standard gamesmanship with dramatic moralism.
Reply to this commentLinkReport AbuseIF congress was in recess, you'd have a point.
However, by Harry Reid's own grandstanding, they're in session.
Reply to this commentLinkReport AbuseI addressed this. The pro forma sessions are another procedural gimmick, and Obama's obvious play is to call it precisely that.
Reply to this commentLinkReport AbuseYeah. Having a Congress at all is a "procedural gimmick" meant to hamstring this President.
Reply to this commentLinkReport AbuseNo. Automatically filibustering presidential nominations is procedural gamesmanship. So are empty pro forma sessions designed to prevent via technicality a Senate recess. Did you complain about recess appointments when Bush made them? It's how the game is played. (I'm all for changing the game, I'll admit--an elected president shouldn't have so much trouble getting the government staffed.)
But if you want to talk congressional authority, why not. The Senate is granted "advice and consent" authority by the Constitution on presidential nominations. A case can be made that filibustering Cordray not because of Cordray's qualifications but in order to force changes to Dodd-Frank exceeds this authority.
Reply to this commentLinkReport AbuseI am unaware of the constitutional precedent that says the President is the one who determines Congress is in session.
Reply to this commentLinkReport AbuseWell, point me to the precedent that allows the legislative opposition to nullify a law passed through normal processes by refusing to allow the executive branch to staff it. Doesn't sound like "advice and consent" to me.
Reply to this commentLinkReport AbuseLast time I checked, the Senate is run by the Democrats. If you want to complain about them not coming to a vote, blame Reid.
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