Senate Republicans have been holding up the confirmation of Richard Cordray to head the new Consumer Financial Protection Bureau until changes to the agency’s structure are made to provide oversight and accountability at the agency. But sources from inside the Capitol tell Capitol Confidential that a recess appointment of Richard Cordray to head the unconstitutional CFPB could come as early as tomorrow.
"We have been hearing consistently from the Senate offices that the President is considering a recess appointment of Richard Cordray along with a slew of other controversial nominees in the brief period between the two sessions of Congress," a key Senate source said. “Now we are hearing from Senior Democrat staffers that something big is coming tomorrow [Jan 4].”
Article II, Section 2 of the Constitution provides the president with the power to “fill up all Vacancies that may happen during the Recess of the Senate.” The problem for the president and his liberal allies is that the Senate has not recessed and technically remains in session. However, liberal groups are pressing the White House to invoke the “Roosevelt Option” to stack key government positions with radicals ready to carry out an anti-business, pro-big labor regulatory agenda. The Roosevelt Option is coined from the actions of Teddy Roosevelt who in 1903, in a split-second between two congressional sessions of Congress, made more than 100 recess appointments. In 2012, Congress will need to move from the First Session of this current Congress to the Second Session. Liberals claim the fraction of a second between the sessions is enough to trigger presidential power.
Others are more brazenly calling for the president to invoke presidential powers never before contemplated. Some have even suggested the president declare the Congress in recess, like a tinhorn dictator from a Third World country.
But even invoking the so-called “Roosevelt Option” may not solve the liberals’ conundrum. Sources tell Capitol Confidential that the statute creating the CFPB demands that the director be confirmed by the Senate—not installed via recess appointment—to trigger the agency’s shift from Treasury to the Fed and empower the Director.
But none of the legal or constitutional arguments may matter much. Liberals and the Obama administration appear poised to forge ahead with an outrageous and unconstitutional power grab. And by the time the courts work it out, so much damage will already be done.
So, let’s be clear about what is happening here: The President of the United States is planning to use an obscure precedent to claim that a split second in time empowers him to go around Congress to appoint a director to an agency that has broad unchecked, almost dictatorial powers to regulate business in America with little or no oversight from the peoples’ representatives in Congress.
Such actions by the president would be an open declaration of war on constitutional principles and completely undermine our system of checks and balances. These kinds of power grabs are exactly how Banana Republics are born.