The Consumer Financial Protection Bureau is a fact of law, created by majority votes of both the House and Senate and the signature of the president. To serve as director of the CFPB — a post also created by law — President Obama named Richard Cordray, a well-respected former attorney general from Ohio who has drawn bipartisan support from his former AG colleagues around the country.
In fact, Cordray’s nomination represented an attempt at peacemaking on Obama’s part. He initially intended to appoint Elizabeth Warren to the job, but settled on Cordray as an gesture of good faith.
It did him no good. Congressional Republicans do not like the CFPB or its mission of protecting citizens from financial fraud. Ensuring that members of the public aren’t cheated through mortgage fraud or credit-card abuses is, in their minds, an illegitimate federal function and an example of overregulation.
However, because they lack the votes needed to kill the agency or enact changes in its structure, GOP leaders have chosen to hamstring the agency by refusing to let the Senate vote on Cordray’s appointment. As long as it has no director, the agency cannot perform basic functions assigned to it by law, such as oversight of payday lenders and private student lending.
That point is important. Congressional Republicans are trying to prevent a duly created federal agency from carrying out the duties described for it in federal law, and they make no bones about it. They have acknowledged that they have no problem with Cordray, and that they intend to block the appointment of anyone for that position. It is, in other words, a temper tantrum thrown by childish people who can’t get their own way.
Today, President Obama is appointing Cordray anyway, citing his constitutional power to appoint executives when Congress is not in session. That has outraged congressional Republicans, who claim that Congress technically remains in session even though in reality the Senate finished business on Dec. 19 and does not reconvene until Jan. 23.
Here’s Speaker John Boehner:
“This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department. The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution.”
Just to be clear, there is nothing in the Constitution that allows a minority of senators to block confirmation of presidential nominees. The power to do so comes from Senate rules, not the Constitution, and those rules have been bent and twisted in recent years to give the Senate minority a veto power over executive appointments that the drafters of the Constitution never envisioned.
Furthermore, when the Founding Fathers gave the Senate the power to confirm presidential nominees, they did so to give Congress oversight over who was being nominated. It was never intended to serve as a mechanism to cripple legal government functions.
In effect, Obama has implemented a “work-around” to address extra-constitutional efforts to hamstring the executive from the performance of duties outlined in the law. He is attempting to make government work on behalf of the American people; congressional Republicans are attempting to ensure that it does not.
UPDATE: A similar set of circumstances has forced President Obama to make three recess appointments to the National Labor Relations Board, a step that will be at least as controversial as the Cordray appointment. The five-member NLRB has just two officially confirmed members, and that’s insufficient to do business because two members don’t constitute a quorum. By refusing to confirm new members, Senate Republicans had hoped to put the NLRB out of business.
Over the last two years, Obama has nominated four people to the NLRB. The Senate has voted on none of them. That includes Terence Flynn, a Republican nominated to the board a year ago tomorrow. Today, Obama used the recess loophole to install Flynn as well as two Democrats, Sharon Block and Richard Griffin.
– Jay Bookman