Playing Politics with the Constitution and the Law

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Playing politics with the Constitution and the law.

All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

The Dodd-Frank act explicitly requires Cordray’s confirmation by the Senate in order for his authority to go into effect. Prior to that confirmation he has no authority.

Once again, the issue here is what Obama’s actions tell us about him as an elected official, suggesting that he an arrogant man who is willing to trash the Constitution and create legal hell for business and the government all for the sake of election-year politics. Not a good recommendation at all.


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  • Jim

    The language in Dodd-Frank is clear:
    “confirmed by the Senate IN ACCORDANCE with section 1011.”
    And in section 1011, it says:
    “the Director shall be appointed by the President, by and with the advice and consent of the Senate.”
    Now understand that every single appointment made by any President at any time is ‘by and with the advice and consent of the Senate.” It has always been thus.
    The only exception, as laid out in the Constitution, is during recess. And then appointments can be made by the President for later confirmation.
    Dodd-Frank is simply following ‘advise and consent’ under the Constitution, which allows for recess appointments.
    But like I said before, I hope your side challenges and wins, and we in effect end all recess appointments, for any President, Republican or Democrat.
    On that we can agree, right?
    Actually, its the reason Republicans themselves won’t challenge it because it will effect them when they hold the executive branch, and that is the last thing they want.

  • Jim

    You know, let me summarize for you what I guess you are hoping is validated by the courts, based on your postings:
    1. That any Senate, going forward, can have one Senator gavel in and then gavel out 20 seconds later and that constitutes being in session, even if all other Senators are on vacation.
    2. That any House can simply fail to recognize the Senate being in recess, simply to deny any President the ability to make any recess appointments at all.
    3. That any party can simply filibuster any appointee, without considering his or her qualifications, in order to deny a lawfully enacted provision to set up an agency of any type, thus denying the establishment of that agency.

    Is that what you want? I don’t. If one side is allowed to do, both sides must be allowed. If those 3 things are validated by the courts, there will be no more recess appointments. And Ronald Reagan would not have been able to make those 240 recess appointments.
    And this is why Republicans will eventually, after much gnashing of teeth, let this die.

  • LINO

    My question is this:

    If the minority in the Senate (53 senators approved Cordray) openly announces it will block approval of ANYONE the President names, is this not a violation of their role—in the truest sense? There is no Advise/Consent role if you refuse to consider the qualifications of the candidate. I have not heard a single argument against Cordray’s qualifications for this position.

    In that case, isn’t the President to be commended for looking for creative ways to carry out his duty? The constitution is designed to be interpreted in special situations, such as this one.

    If his choice of interpretation is not within the rules, (or if the Senate is acting improperly), isn’t there a clear mechanism to evaluate that choice? Is it the courts or the electorate? I can live with either one.

    If the aggrieved area chooses not to pursue that remediation, it suggests that they are willing to make noise but not truly pursue a remedy due to the political implications.

    If that’s the case, it’s all just politics–as usual. Neither side gets its own way at least half of the time!

  • Chris Kirkendall

    Sorry – you guys are playing word games. No one would be raising this issue if this were truly a “recess” appointment. The Senate clearly was NOT in recess, so this was Obama’s attempt to do an end-run around the Senate & the Constitution itself. It’s a dangerous precedent & it should NOT be allowed to stand – if it is, ALL future presidents – Repub or Dem – will just ignore their Constitutional duty to to get Senate approval. This is not the first instance of Obama acting like a King or dictator. I suspect you’re only defending it because you like Obama – you would never defend this action if Bush or any Republican president had done it.

  • Jim

    Actually, Chris, Obama is defending the Constitution. It was the will of the people, in 2010, to pass Dodd-Frank, and thus set up the Consumer Financial Protection Bureau. It is the President’s duty to enforce the law, and since that Bureau cannot function without a Director, he needs to do all that is in his power to see that appointment is filled. The Constitution also grants to the President the ability to make recess appointments. He has done so.

    So your whole argument rests on whether or not Congress was in recess. The President thinks it was (as do I), and he made the appointment. If what you say is true, it is then the duty for one Republican Senator to challenge the President in a lawsuit. I believe that Senator would have standing to do so, since he is saying (like you) that the President did something unconstitutional. One of them MUST do this, and who knows, maybe you will get the impeachable offense that many have been looking for during the past 3 years.

    I hope that lawsuit is brought. If it is so clear that Obama has acted unconstitutionally, it should not take much convincing. But I doubt that it will. Why? Because it is the President who has been acting in deference to the Constitution, not Republicans.
    But you and I can agree that we both hope the lawsuit will be brought. At this point, someone must do that, I would think.

  • Chris Kirkendall

    Sorry, I don’t buy this argument. It’s pretty clear when the Senate in in session & when it isn’t. It clearly was NOT. As you know, Harry Reid used the same strategy against Bush to prevent recess appointments, and Bush did not challenge their right to stay in session. It looks to me like Obama is now able to define a “Recess” as being whatever he SAYS it is ! ! Can he make a recess appointment overnight? How about on a weekend? It’s very conveneient to say, well just let a GOP Senator make the challenge that this was unconstitutional, but you and I & everyone reading this knows there’s no chance that will happen, because a) the MSM will crucify any GOP senator who “dares” do such at thing, and b) the Senate, currently controlled by a very partisan Democrat Party, would NEVER vote to remove Obama or any Dem president, even if the action was determined to be unconstitutional & the House subsequently impeached. As I said before, precedents are set by actions like this, and if this goes unchallenged, future presidents of either party will be able to just ignore the Constitutional requirement of the “Advise & Consent” role given to the Senate…

  • Jim

    OK Chris, and thanks for responding. We both try to do our best I think. Peace.

  • Chris Kirkendall

    Thanks, Jim – nice to know we can disagree, and without name-calling or bad blood. Appreciate that comment from you…

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