Jeb Hensarling, the chairman of the House Financial Services Committee, recently expressed support for a court’s ruling of President Obama’s recess appointments as unconstitutional.
“President Obama’s administration has too often demonstrated a disregard for legislative authority and the separation of powers,” Hensarling said. “In making these appointments, he essentially tried to erase from our Constitution the requirement—placed there by America’s founders—that senior executive branch officials be appointed only with the ‘advice and consent’ of the Senate. This Constitutional requirement is a check on the abuse of executive power, and clearly President Obama overreached. This ruling makes clear that the President’s alleged recess appointment of the CFPB director is unlawful or unconstitutional or both. It also clearly calls into question the legal validity of any and all actions undertaken by the CFPB since this appointment was made, adding even greater uncertainty to our still struggling economy.”
Last January, in the face of Republican opposition, President Obama announced that he would use his power of recess appointments to install Richard Cordray as director of the CFPB. The Senate previously rejected Cordray’s nomination in December 2011 and said that it would oppose the appointment of any nominee to the agency until changes were made. President Obama also used the power of recess appointments to nominate three members to the National Labor Relations Board.
Republicans have voiced concern about the CFPB and its funding, which is drawn from the U.S. Federal Reserve and is not subject to the congressional appropriations process. Critics have also said that both the CFPB and Director Richard Cordray have over-expansive power.
“As it is currently structured, the CFPB is the most powerful and least accountable agency in all of Washington,” Hensarling said. “The Dodd-Frank Act places the CFPB under the control of a single person who has sole authority to command more than 1,000 government employees and spend hundreds of millions of dollars—no questions asked. In addition, the CFPB director has unprecedented power to decide what financial products and services will—and will not—be available to everyday American consumers. No one unelected bureaucrat should have the power to deny a credit card to a hardworking single mother who is trying to put food on the table for her children.”
The court said in its decision that while the Recess Appointments Clause of the Constitution allows the president to fill vacancies during a Senate recess, the clause allows the president to only make recess appointments during intersession Senate recesses — or recesses between formal Senate sessions — and not during intrasession recesses, which are breaks occurring throughout the course of a congressional session, Mondaq reports.
Additionally, Chief Judge Sentelle and Judge Henderson of the U.S. Circuit Court of Appeals for the District of Columbia Circuit said that the president can only make recess appointments to fill vacancies that arise during an intersession recess, rejecting a practice that has been used by the executive branch since the 19th century.
The court’s decision will not take effect immediately because the Justice Department has 45 days to ask the court to reconsider the decision and 90 days to consider a U.S. Supreme Court appeal. Lawyers for the Obama administration plan to argue the president’s recess appointments in two more hearings on the matter set to be held in Philadelphia and Richmond in March.
Hensarling said that the court’s decision should be used by the Obama administration and Congress to make “common sense reforms to the CFPB so it is transparent and accountable to the American people.”
“I commend those senators who continue to insist on first making the CFPB accountable before approving any nominee for director,” Hensarling said. “It’s time for the president to work with those of us who want stronger consumer protections and accountability of this government agency.”