President Obama "manned up" Wednesday, exercised his executive authority and announced the recess appointment of Richard Cordray as the Director of the Consumer Financial Protection Bureau—ending months of partisan bickering and obstructionism by 45 Republican Senators and their patrons in the financial services industry. I read the comments of GOP leaders in the House and Senate (which we all expected) and could only shake my head. I felt like I was reading the script of "The Daily Show."
"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," House Speaker John Boehner (R-Ohio) said in a statement. "This action goes beyond the President's authority, and I expect the courts will find the appointment to be illegitimate."
Please, Mr. Speaker. Can you really say that with a straight face?
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Senate Minority Leader Mitch McConnell (R-Ky.) ratcheted up the rhetoric even more saying Obama has "arrogantly circumvented the American people" by installing Cordray when the Senate isn't in recess. According to the Senate's Dr. No, "This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer…Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress's role in providing a check on the excesses of the executive branch." Actually, fellas, you're mistaken.
Permit me to explain (listen closely, my Republican friends).
When legislation is passed by both the U.S. Senate and the House of Representatives and signed into law by the President, Senators have blocked recess appointments of unobjectionable nominees in the past, preventing their appointment, though the technicality of a "pro-forma session" (aka the "non-recess recess"). For us mortals unschooled in the byzantine rules of the Senate, a "pro forma session" occurs when a couple of Senators "gavel in" and "gavel out" but conduct no business.
As Credit.com's Christopher Maag reported two days ago, some have argued that the pro forma sessions should not prevent the President from making recess appointments. In a 2010 editorial in the Washington Post, former Justice Department attorneys Steven G. Bradbury and John P. Elwood wrote:
"The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president's nominations. That means the Senate remains in 'recess' for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions. The president should consider calling the Senate's bluff by exercising his recess appointment power to challenge the use of pro forma sessions. If the Senate persists, then the federal courts may need to resolve the validity of the Senate's gambit."
Ultimately, the President's bold move will produce a hailstorm of political and legal debate, most of it abstruse. The explicit power granted to the president by Article 2 of the Constitution has generally been interpreted broadly by the courts, in those rare instances where it is has been interpreted at all.
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.
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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."
Obviously Director Cordray takes his mission to protect (not circumvent) the public seriously. Literally 24 hours after his official appointment, he made it clear in a speech before the Brookings Institution that financial organizations best be playing by the rules, lest there be "real consequences."
The CFPB has "examiners on the ground today with broad authority" to inspect loan documents and ask "tough questions of financial institutions."
"The consumer bureau will make clear that there are real consequences to breaking the law. We have given informants and whistleblowers direct access to us. We took over a number of investigations from other agencies in July and we are pursuing investigations jointly with them."
So, if circumventing gridlock in order to promote the financial "health, safety and welfare" of the American people by way of a recess appointment during a highly questionable non-recess recess gets us to the finish line, sign me up.
Adam Levin is Chairman and cofounder of Credit.com and Identity Theft 911. His experience as former director of the New Jersey Division of Consumer Affairs gives him unique insight into consumer privacy, legislation and financial advocacy. He is a nationally recognized expert on identity theft and credit.