Obama on Flouting Article 2, Section 2 of Constitution: ‘I Refuse to Take No for an Answer’

Fred Lucas | January 4, 2012 | 3:20pm EST
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President Barack Obama shakes hands with Richard Cordray at Shaker Heights High School,Wednesday, Jan. 4, 2012, in Shaker Heights, Ohio. In a defiant display of executive power, President Barack Obama on Wednesday will buck GOP opposition and name Cordray as the nation's chief consumer watchdog. Outraged Republican leaders in Congress suggested that courts would determine the appointment was illegal. (AP Photo/Tony Dejak)

(CNSNews.com) – President Barack Obama, hitting a key swing state on Wednesday, defended his decision to go ahead and appoint Richard Cordray as head the Consumer Financial Protection Bureau (CFPB) without securing the Senate confirmation that is required by the U.S. Constitution.

Article 2, Section 2 of the Constitution says that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 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."

The Senate is not currently in recess, and the Congress did not give Obama the power to name the head of CFPB without Senate approval. Nonetheless, Obama has appointed Cordray without the constitutionally mandated Senate approval.

Last year, Obama nominated former Ohio Attorney General Richard Cordray to run the CFPB, which was established by the controversial Dodd-Frank financial reform law in 2010. The Senate did not confirm Cordray.

Obama spoke on Wednesday in Cordray’s home state at the Shaker Heights High School in Shaker Heights, Ohio.

“Without a director in place, the consumer watchdog agency we’ve set up is left without the tools it needs to prevent dishonest mortgage brokers, payday lenders, and debt collectors from taking advantage of consumers,” Obama said. “That’s inexcusable. It’s wrong. And I refuse to take no for an answer.”

Obama said Cordray has the support of Republican and Democratic state attorneys general from across the country, and of a majority of the Senate.

“The only reason Republicans in the Senate have blocked Richard is because they don’t agree with the law setting up the consumer watchdog,” Obama said. “They want to weaken it. Well, that makes no sense at all. Does anyone think the reason we got in such a financial mess was because of too much oversight? Of course not.”

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“We shouldn’t be weakening oversight and accountability,” said Obama. “We should be strengthening it--especially when it comes to looking out for families like yours. Financial firms have armies of lobbyists in Washington looking out for their interests. It’s time someone fought for you, too.”

Before his nomination, Cordray served as attorney general of Ohio from January 2009 to January 2011. He served two years as Ohio’s state treasurer and four years as the treasurer of Franklin County, Ohio.

Richard Cordray. (AP Photo)

Obama, as a senator, opposed President George W. Bush’s recess appointment of United Nations Ambassador John Bolton. “To some degree, he's damaged goods … somebody who couldn't get through a nomination in the Senate. And I think that that means that we will have less credibility,” Obama said of Bolton, according to The State Journal-Register of Springfield, Ill. on Aug. 2, 2005.

Senate Minority Leader Mitch McConnell (R-Ohio) called the appointment of Cordray unprecedented.

“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people by 'recess' appointing Richard Cordray as director of the new CFPB,” McConnell said in a written statement. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer. Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’ role in providing a check on the excesses of the executive branch.”

Last year, 44 Senate Republicans said they would not confirm any nominee as director, regardless of party, until structural changes were made to the bureau’s accountability. “But once again, the President has chosen to circumvent the confirmation process,” McConnell said.

“The CFPB is poised to be one of the least accountable and most powerful agencies in Washington,” McConnell said. “Created by the deeply flawed Dodd-Frank law, it is subject to none of the checks that independent agencies normally operate under, and will have an unprecedented reach and control over individual consumer decisions.”

Cordray should be willing to testify before Congress for a Jan. 24 hearing, said Rep. Patrick McHenry (R-N.C.), the chairman of the House Oversight and Government Reform subcommittee on TARP, Financial Services and Bailouts of Public and Private Services.

“The President should stop allowing his Chicago political campaign to make his Washington policy decisions,” McHenry said in a written statement. “The unprecedented appointment of Mr. Cordray runs counter to the constitutional requirements for a recess appointment and Obama’s own campaign pledge to run ‘the most transparent administration in history.’ There are legitimate policy concerns about the structure of the CFPB. They can be reconciled, but the president refuses to even have the conversation.”

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