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.
"Each year (or quarter of such year), beginning on the designated transfer date, and each quarter thereafter," says the Dodd-Frank law, "the Board of Governors shall transfer to the Bureau from the combined earnings of the Federal Reserve System, the amount determined by the Director to be reasonably necessary to carry out the authorities of the Bureau under Federal consumer financial law, taking into account such other sums made available to the Bureau from the preceding year (or quarter of such year)."
Who will control these unappropriated funds? Obama's unconfirmed director.
"Funds obtained by, transferred to, or credited to the Bureau Fund shall be immediately available to the Bureau and under the control of the Director, and shall remain available until expended, to pay the expenses of the Bureau in carrying out its duties and responsibilities."
Most astoundingly, the law itself says: "Funds obtained by or transferred to the Bureau Fund shall not be construed to be Government funds or appropriated monies."
So what will this agency whose director was not confirmed by the Senate and whose funding cannot be controlled by Congress do?
The summary of the legislation published by the Democrat-controlled Senate Banking Committee says CFPB is empowered to "autonomously write rules for consumer protections governing all financial institutions -- banks and non-banks -- offering consumer financial services or products."
On May 5, 2011, 44 Senate Republicans signed a letter to President Obama protesting the unprecedented power and funding mechanism of CFPB. They vowed that they would "not support the consideration of any nominee, regardless of party affiliation, to be the CFPB director until the structure of the Consumer Financial Protection Bureau is reformed."
"The CFPB director will have vast rulemaking, supervisory, investigative and enforcement powers and the authority to regulate any person or business that offers or sells a 'financial product or service," the Senate Republicans told Obama. "This authority will directly affect every American household by limiting their choices when purchasing financial products, restricting the availability of credit to consumers, and increasing the cost of goods or services purchased using credit."
Obama never answered this letter. So, when Senate Democrats tried to bring Cordray's nomination for a vote on Dec. 8, Republicans blocked it.
"Despite the vast power vested in the hands of the director, there are no effective checks on the director's authority," said Sen. Richard Shelby, the ranking Republican on Banking Committee, explaining the Republican move.
Obama then simply named Cordray director without a Senate confirmation vote.
"When you set up something that is outside the control of the elected branches, when you set up something that doesn't require the appropriations by Congress to make sure they can continue their work only on the basis of their complying with the constitutional requirements, then you have essentially set up the potential for a rogue agency which does not have any controls and therefore you're affecting the liberty of the people," former Attorney General Meese told me.
Meese is right. If voters in this election don't insist that the next Congress kill this unconstitutional monster Obama has created at the Fed, voting won't mean as much to their children and their grandchildren.