President Obama has gone around Congress in as many ways as he can find. One way is by abusing the presidential power to make appointments to government positions during a supposed Senate recess—in an attempt to avoid having the Senate confirm the nominees.
Last week, a three-judge panel of the D.C. Circuit Court of Appeals dealt quite a blow: It ruled that a number of President Obama’s “recess appointments” were invalid.
As Todd Gaziano, director of Heritage’s Center for Legal and Judicial Studies, said: “Our unilateral president must take his unilateral medicine.”
Heritage’s James Gattuso explains:
To sidestep opposition in the Senate, the President declared these to be “recess” appointments, invoking his prerogative to fill vacancies without Senate confirmation when that body is not in session. The action was roundly criticized on the grounds that although the Senate was not actively conducting legislative business, it was formally still in session.
The judges issued an even broader ground for striking down the unconstitutional appointments, holding that President Obama could make valid recess appointments only during an intersession “recess” that occurs between annual sessions of Congress, and that recess appointments also cannot be made unless the position becomes vacant during the Senate’s valid intersession recess. This brings up huge questions for all the unconstitutional appointees who have now been declared invalid—and the regulations they have created during their time in office.
There’s the National Labor Relations Board (NLRB), which had three members appointed in this way. Gaziano notes that “13 months’ worth of rulings, regulations, and other actions by the NLRB are now in question, because without the illegal recess appointments the NLRB lacked a quorum to act during all that time.”
And then there’s the Consumer Financial Protection Bureau (CFPB), whose director, Richard Cordray, was another of these invalid appointments. The bureau has been regulating away for the past year, but Gattuso writes that “the new rules adopted by the CFPB under Cordray will likely be invalidated.”
Gattuso describes the CFPB as “perhaps the least accountable entity in the federal government”—so this is good news.
The odds are that this imbroglio will stall the CFPB’s regulatory agenda for some time. That, however, is no bad thing for consumers. The rules adopted by the CFPB, by limiting lender activity, decrease options for consumers and increase costs for mortgages and other loans. Reining them in could actually be a boon for consumer welfare.
There’s a reason the Senate is supposed to confirm these nominees—and in the case of the CFPB, the agency itself merits closer scrutiny. The judges’ decision is a welcome check on Obama’s abuses of power.
The Consumer Financial Protection Bureau and Its Non-Director: What Now? by James L. Gattuso