They called it a “stunt” early last week when House Financial Services Committee Chairman Jeb Hensarling (R-Texas) refused to allow Consumer Financial Protection Bureau (CFPB) director Richard Cordray to testify due to the constitutional cloud over Cordray’s appointment. But this “stunt” just may have forced the Obama administration’s hand in submitting a brief later in the week urging the Supreme Court to resolve the issue.
In a statement, Hensarling announced that the committee could not “legally accept testimony from Richard Cordray … until he is validly appointed as the bureau’s director.” In the letter that Hensarling sent to Cordray, Hensarling cited the ruling of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. National Labor Relations Board that three “recess” appointments to the labor board made the same day and in the same manner as Cordray’s appointment were ruled unconstitutional. “It is clear,” Hensarling wrote, “as a number of legal scholars have concluded, that your appointment was also unconstitutional.”
This is exactly what the Competitive Enterprise Institute, and our co-plaintiffs the 60 Plus Association and the State National Bank of Big Spring (Texas), argue in our lawsuit challenging the constitutionality of the CFPB and other elements of Dodd-Frank, the so-called financial reform law rammed through Congress in 2010. Neither Cordray nor the NLRB officials were valid “recess” appointments, because the Senate was in pro-forma session, gaveling in and out every three days and ready for legislative business should it occur (including changes to payroll tax legislation Congress made during these sessions).
The Obama administration’s action was unprecedented. As noted by the nonpartisan Congressional Research Service and reported by Politico, during the 2007-08 pro forma sessions when the Democrats controlled both houses, President Bush “made no recess appointments between [Democrats’] initial pro forma sessions in November 2007 and the end of his presidency.” As I asked on OpenMarket on January 4, 2012, the day the recess appointments were made, “If any adjournment or break the Senate takes can be defined as ‘recess,’ can the president make appointments when the Senate is in formal session and gavels out for the evening?” Or could a recess even be declared when the Senate adjourns for a bathroom break?!