Beyond the legal arguments, the statements made by Boehner and McConnell conveniently overlook some history; for example, Teddy Roosevelt made a series of recess appointments during a recess of less than a day (indeed, in a matter of seconds), not the 10 days cited by McConnell. The Speaker should recognize that what President Obama did was certainly not "unprecedented," and, as power grabs go in Washington, seems quite tame by comparison to, say, the Republicans making a majority vote mean 60% rather than 51% (that's so 2009) by filibustering as often as they have breakfast. In the Senate 60 votes are required to shut off endless debate. In all fairness, Democrats have gone filibuster-crazy in the past too, though not as crazy as the current Congress.
Perhaps most importantly, the entire purpose of the recess appointments clause in article 2 cannot be defeated by the sham of a "pro-forma session," which is designed strictly to prevent that which the Constitution explicitly authorizes, and which ensures something that would've been quite objectionable to the founding fathers—surely they would not have wanted a "tyranny of the minority," anymore than a "tyranny of the majority," or for that matter, anymore than they, or any American, would want a tyranny of any kind.
And let's not forget what this fight is all about.
The CFPB was created in 2010 as the centerpiece of the Dodd-Frank financial reform act. Its job is to be "the" single-focused consumer protector in the financial services area consolidating powers of seven (count 'em—seven) regulatory agencies that kept falling over each other for decades and never fully protected the interests of the American people.
It opened for business last July. It has had no permanent director. So, while it had the power to enforce existing laws and regulations, it lacked the authority to write new (or update outdated) rules or regulate non-financial industries that have feasted on consumers for decades but have been mostly unregulated—like payday lenders, non-bank mortgage lenders and servicers, debt collectors, debt relief services and prepaid credit cards to name a few.
Its mission is to make markets for consumer financial products and services work for Americans—whether they are applying for a mortgage, choosing among credit cards, or using any number of other consumer financial products.
That sounds pretty subversive.
Circumventing the American people, eh? To quote Jack Ryan in Tom Clancy's masterpiece Clear and Present Danger: "How dare you sir!" But maybe it's me.
[Article: The Most DisCREDITed Ideas of 2011]
I have always found the arguments against allowing the CFPB to have the director it needed to accomplish its mission pretty outrageous. I can only highlight, yet again, the wonderful statement made by Rep. Brad Miller (D-NC) on the floor of the House during debate defending the CFPB:
"I've talked to a lot of people about whether they like the freedom to be cheated on credit cards, to be cheated on mortgages, to be cheated on overdraft fees, and I found that was not really a freedom they valued," Rep. Brad Miller (D-N.C.) said on the House floor during debate over the legislation. "They don't really value that any more than Americans 100 years ago valued the right to buy rancid beef."