Did President Barack Obama's appointment of Richard Cordray to be director of the Consumer Financial Protection Bureau without a Senate confirmation vote violate the Constitution? The answer is plainly yes.
Article 2, Section 2 of the Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Officers of the United States ... but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone (and) ... The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
Article 1, Section 5 says: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."
Given these constitutional mandates, two questions were pertinent to Cordray's appointment: Did Congress make the CFPB director an "inferior officer" the president could appoint without Senate confirmation? Was Congress in session on Jan. 4, when Obama made the appointment?
The Dodd-Frank law, which created the CFPB, specifically says "the Director shall be appointed by the President, by and with the advice and consent of the Senate."
On Jan. 4, the Senate did not have the "consent" of the House to adjourn as required by Article 1, Section 5. Congress was not in recess.
Obama simply flouted the Constitution.
In a recent interview, former Attorney General Ed Meese told me "the House of Representatives should pass a sense of the House resolution condemning the president for this, so that the people themselves will understand that he is doing an unconstitutional act."
Undoubtedly, the House should do this. But there is an even more serious issue here.
Obama abused the Constitution not only in appointing Cordray but also in signing the law creating CFPB.
The Constitution plainly states how the federal government can spend money. Article 1, Section 9 says: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."
This principle is first cousin to the primary principle that inspired the Founding Fathers to declare American independence from England. Just as there should be no taxation without representation, there should be no spending without representation.
But CFPB will not be funded by money Congress appropriates in keeping with Article 1, Section 9. It will be funded directly by the unelected Board of Governors of the Federal Reserve.
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