MILLER: Obama’s illegal power grab

Phony ‘recess’ appointments violate the Constitution

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Richard Cordray started his new job on Thursday as director of the Consumer Financial Protection Bureau (CFPB). Though he may wear that fancy new title, he lacks the statutory power and constitutional authority of the office.

On Wednesday, after the Senate adjourned for one day, President Obama unilaterally installed Mr. Cordray to the CFPB and added three members to the National Labor Relations Board (NLRB), claiming these were “recess appointments” even though the Senate was in pro-forma session, not recess.

In his first speech, Mr. Cordray insisted his appointment was “valid” and “now, for the first time, we can exercise the full authorities granted to us under the new law.”

He said at the Brookings Institution he was immediately “launching the bureau’s program for supervising nonbanks. We will begin dealing face-to-face with payday lenders, mortgage servicers, mortgage originators, private student lenders and other firms that often compete with banks but have largely escaped any meaningful federal oversight.” In other words, Big Brother is in business now.

Sen. Rob Portman insists this usurpation of power violates the law. Established by the Dodd-Frank Act in 2010, the CFPB was not allowed to regulate entities other than banks until a director was confirmed. “The statute creating the CFPB makes clear that only Senate confirmation of a director - not a recess appointment - can activate the new powers of this agency to regulate consumer transactions with Main Street businesses,” the Ohio Republican said in a statement.

Under Article II, Section 2 of the Constitution, the president has the power to fill executive-branch vacancies during a Senate recess. The upper chamber is currently in a pro-forma session, which means it meets every three days but no official business takes place.

Both chambers must take a simple majority adjournment vote to go into recess, but Senate Majority Leader Harry Reid did not ask to do so. The Nevada Democrat knew Minority Leader Mitch McConnell, Kentucky Republican, wasn’t about to give the president a chance to appoint Mr. Cordray. This is part of the Senate’s proper advise-and-consent role for nominees.

Senate Republicans even said that they would confirm Mr. Cordray, but only if three key structural changes were made to increase CFPB’s accountability. As Mr. McConnell’s spokesman, Don Stewart, pointed out, “Not a single Senate Democrat will come forward and say we are in recess. That tells you something.”

For the vacant slots on NLRB’s board, Mr. Obama installed Sharon Block, Terence Flynn and Richard Griffin. While Mr. Cordray had a confirmation hearing in September, this trio has never been vetted by the Senate. The White House was so rash in pushing the Democrats, Mr. Griffin and Ms. Block, that it hasn’t even sent their paperwork to the Senate.

“The American people don’t get a chance to have a hearing on these people before they will be able to make outrageous decisions like Boeing,” Mr. Stewart said, referring to NLRB’s attempt to stop the airplane manufacturer from building a nonunion plant in South Carolina.

Undoubtedly, one of the many businesses unfairly regulated by this pack of bureaucrats will sue. When this happens, the courts ought to stay any further agency actions to reinstate the Founding Father’s intention of checks and balances among the three branches of government.

Emily Miller is a senior editor for the Opinion pages at The Washington Times.

© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.

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