BLOG VIEW: I never truly appreciated the cynicism of the Obama administration until last week, when the White House announced that it was using a recess appointment to shoehorn Richard Cordray into the position of director of the Consumer Financial Protection Bureau (CFPB).
For those who have not been following the CFPB soap opera, here is a quickie update: President Obama nominated Cordray to run the CFPB only a few days before the new bureau opened in July 2011. Thus, the White House ensured that the CFPB would begin operations with no formal director in charge.
The Cordray nomination was in a state of limbo because most of the Senate Republicans would not allow Cordray's candidacy to proceed for a vote by the full Senate. Their reason: The CFPB director has too much power for a single bureaucrat, and the new agency would be better served if it were run along the lines of a commission.
The Republicans, recognizing that the White House could do an end-run around the Senate with a recess appointment of Cordray, insisting on holding ‘pro forma’ sessions when the Senate was supposed to be in recess. Under their interpretation of the law, a recess appointment could not be made as long as one chamber of Congress was still in session. Thus, these pro forma sessions were in place since last summer to prevent the president from making a recess appointment.
Of course, it did not work. In announcing last week's recess appointment, White House Communications Director Dan Pfeiffer used the administration's blog to defend the appointment while slamming the Republicans that blocked the nomination.
‘The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks,’ Pfeiffer wrote. ‘In an overt attempt to prevent the president from exercising his authority during this period, Republican Senators insisted on using a gimmick called 'pro forma' sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds.
‘But gimmicks do not override the president's constitutional authority to make appointments to keep the government running,’ Pfeiffer continued. ‘Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham 'pro forma' sessions to prevent the president from exercising a constitutional power.’
If the Senate has ‘effectively been in recess for weeks,’ why did the president wait until Jan. 4 to make the Cordray appointment? Pfeiffer insisted that the appointment was ‘a critical piece to strengthen the economy and restore the economic security for the middle class and those trying to reach it.’ But if that was the case, why didn't this supposedly crucial appointment come weeks or even months ago?
Hmmmâ�¦you don't suppose that the decision to make this recess appointment the day after Mitt Romney won the Iowa Republican caucus by eight votes was a coincidence? Or the fact that the president himself announced the appointment in a speech in Cordray's home state of Ohio – a necessary electoral prize for anyone seeking the White House – was just a fluke of scheduling?
Alas, Pfeiffer overplayed his hand when he railed against those who believed that the CFPB was not needed. ‘Those critics might tell you that Wall Street should write their own rules,’ he claimed.
Ah, but those critics could also note that the White House is, in fact, helping Wall Street ‘write their own rules.’ Apparently, Pfeiffer wasn't aware that another Ohio politician – Sen. Sherrod Brown, a Democrat – slammed the executive branch last week for giving banks a ‘free pass’ to abandon foreclosed homes in his state. He specifically blamed Office of the Comptroller of the Currency (OCC) for enabling the practice of ‘abandoned foreclosures’ – also known as ‘bank walkaways’ – in which banks decline to take possession of properties after initiating the foreclosure process.
Curiously, the OCC has been without a formal leader since summer 2010. Thomas Curry was nominated by the president and was approved by a Senate panel on Sept. 8, 2011, but he has yet to receive a confirmation vote by the full Senate. If the president could make a recess appointment to fill the void at the CFPB, why didn't he extend his recess appointment powers to fill the void at the OCC?
Of course, the OCC lacks the circus appeal of the CFPB. And, besides, the administration is probably laughing up its sleeve as the GOP goes into a lather over the Cordray news. House Speaker John Boehner, R-Ohio, was the first one out of the GOP clown car by claiming the Cordray news had a ‘devastating effect on the checks and balances that are enshrined in our constitution’ and insisting that ‘the courts will find the appointment to be illegitimate.’
A constitutional crisis? Courtroom intrigue? If the CFPB did not have the potential to have such a damaging impact on the economy, this overheated nonsense might actually be very funny.
– Phil Hall, editor, MortgageOrb
(Please address all comments regarding this opinion column to hallp@zackin.com.)
