First Principles

In search of the Unified Theory of Conservatism

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Gratuitous Lawlessness

January 6th, 2012 · 5 Comments

Steve Sebelius wrote a nice piece – from the left, no less – which correctly points out the tremendous danger of President Obama’s completely lawless non-recess recess appointment of Richard Cordray to be the Director of the newly created Consumer Financial Protection Bureau.  But then Sebelius tries to find a Constitutional fig leaf for the President to still ignore the Senate’s rejection of Cordray by citing the “extraordinary circumstances” clause of Article 2, Section 3.

It just doesn’t – nor should it – work that way.

Such a secondary option would still do violence to the Constitution – certainly its spirit. The bottom line is that the Senate rejected Cordray, as is their right. That’s one of the checks on the President’s power. At that point, his ONLY Constitutionally legitimate option is to nominate another person for that post, perhaps trying this time for one who can gain the necessary support from the States’ various elected representatives.

And even if it was Constitutionally legitimate, Cordray’s taking power is still not a legally legitimate under the statute which created the CFPB in the first place.  As Professor Zywicki points out at the Volokh Conspiracy:

Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank.  Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.”  It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.

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And are these truly “extraordinary circumstances”?  Please – this wasn’t an invasion or an attack necessitating a swift declaration of war.  Somehow the Republic has survived for 235 years without a “Director of the Consumer Financial Protection Bureau”.  None of this was necessary (or even affordable), much less “extraordinary.”  It was purely a political stunt.

Not only was the President’s action lawless, it was gratuitously lawless – and that’s really what’s so deeply frightening about the whole episode.

Tags: Constitutional Law · Obama