Beltway politicians have identified a parade of scapegoats for the onset and longevity of current economic woes in the America. Among the favorites is Wall Street greed and “risky” investment practices. In truth, federal government expansion and interjection into the free market was the primary culprit.
Instead of being held accountable, Washington, D.C. asserted more control over the financial industry with the creation of the Consumer Financial Protection Bureau (CFPB). The coup d’etat came when President Obama side-stepped Congress and unilaterally appointed Richard Cordray as director of this bureaucracy, granting him power over most aspects of our financial lives.
CFPB gives the executive branch vast new powers
The CFPB was created pursuant to the Dodd-Frank bill that enacted the “financial overhaul of America” in July, 2010. This agency’s realm includes mortgages, credit cards and student loans. The director holds unparalleled regulatory powers, the consolidated authority previously wielded by seven federal agencies.
Funds for the CFPB are not appropriated by Congress. Money comes from the Federal Reserve, drawn from its “excess” earned on assets. In fact, Dodd-Frank explicitly bars Congress from reviewing the funding of the bureau.
The CFPB director will implement and enforce all consumer-related laws regarding the financial industry and credit. Any company offering or transacting consumer financial products and services can be stopped from “committing, or engaging in an unfair, deceptive or abusive act or practice”. The law is purposely vague on what those terms actually mean. Unbelievably, the courts must defer to the bureau’s interpretation of its authority.
Republicans wanted to limit CFPB authority
Congressional Republicans asserted the CFPB and director are too powerful and unaccountable. Lawmakers from the House and Senate demanded changes. One stipulation was to replace the director with a bipartisan commission. They also wanted Congress to have direct control over the agency’s budget.
President Obama and Democrats refused to bend. The President pushed forward, nominating Cordray, a former Ohio attorney general, to head the CFPB. By law, the bureau must have a director to exercise all its powers. In response, Senate Republicans blocked the confirmation, hoping to leverage a compromise. A political stalemate ensued.
The law and precedent regarding appointments
Article II of the Constitution requires Presidents to seek “Advice and Consent of the Senate” to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” That means the President was required to obtain Senate approval for Cordray…unless the Senate was in recess.
Presidents have Constitutional authority to fill vacancies during a recess of the Senate. According to a 1993 brief from the Clinton Justice Department, Congress must remain adjourned for at least three days before the adjournment constitutes a “recess”.
The virtual monarcy of President Obama
The House and Senate never jointly agreed to adjourn and both chambers met at three day intervals for all of 2011. As the end of the first session of the 112th Congress neared, the Senate shifted to “pro forma” sessions with no actual business planned. Democrats commonly operated the Senate in this manner during President Bush’s Tenure.
Despite Constitutional law and Congressional precedent, President Obama made a “recess appointment” of Cordray on January 4, 2012 when the Senate was not adjourned. Essentially he usurped authority to determine whether Congress was in session or not. This contradicts Obama’s own Justice Department comments that validated pro forma sessions.
Mr. Obama decreed, “When Congress refuses to act …I have an obligation as President to do what I can without them.” Apparently, the President believes he has unlimited powers, that he’s subject to periodic elections but not the rule of law.
The CFPB is an audacious expansion of executive branch power beyond Constitutional limits. It comes at the expense of American citizens’ liberty. Yet the more egregious offense is arguably President Obama’s unilateral determination of legislative branch rules and operations. Such radical action undermines the principle of separation of powers.
In the Federalist Papers, James Madison professed the combination of legislative, executive, and judicial powers as “the very definition of tyranny.” The Framers firmly believed that power must be divided and set against itself to prevent abuse. The President’s appointment of Cordray exemplify what they intended to prevent in the United States of America.