Hensarling: Cordray may have been appointed illegally

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The director of the Consumer Financial Protection Bureau may not have always been serving “validly and legally,” according to the chairman of the House Financial Services Committee.

Committee Chairman Jeb Hensarling (R-Texas) is basing that assertion on a Supreme Court decision handed down last week. The court ruled in NLRB v. Noel Canning that President Obama exceeded his constitutional authority when he used recess appointments to fill vacancies on the National Labor Relations Board in January of 2012.

Recess appointments have been used frequently by presidents of both parties to fill vacancies in government agencies, and are authorized by the Constitution. However, the Supreme Court rules that the NLRB appointments didn’t count as recess appointments because they were made during a three-day break in “pro forma” Senate meetings – a time “presumptively too short” to count as a recess, according to the court. “Pro forma” Senate sessions are held around the holidays when the Senate is for all intents and purposes on break. The meetings are held every few days, are only a few minutes in duration, and consider no formal business.

But even pro forma meetings are enough to consider the Senate as still in session, according to the high court. And that means CFPB Director Richard Cordray, who was appointed at the same time as the NLRB members, wasn’t a legitimate pick, Hensarling said.

“President Obama appointed Richard Cordray to head the CFPB at the same time and in the exact same manner as these unconstitutional NLRB appointees,” Hensarling said in a statement. “Clearly and unquestionably, President Obama exceeded his authority when he appointed Director

Cordray, just as he exceeded his authority when he made these NLRB appointments. … By the time the Senate confirmed Mr. Cordray in July 2013, he had served as director for 18 months without legal authority. This fact calls into question the legality of the official actions he took during this time period and may represent a legal risk for the CFPB.”

The CFPB, unsurprisingly, doesn’t agree with Hensarling. CFPB General Counsel Meredith Fuchs said in a statement that the agency did “not expect this decision to impact the CFPB or its important work.” Fuchs also stressed that Cordray was confirmed by the Senate in 2013, and that the agency was not part of the case considered by the high court.
 
COMMENTS
  • Allan Daniels on 7/1/2014 10:30:40 AM

    BUREAU OF CONSUMER FINANCIAL PROTECTION
    Notice of Ratification
    The President appointed me as Director of the Bureau of Consumer Financial Protection on January 4, 2012, pursuant to his authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3. The President subsequently appointed me as Director on July 17, 2013, following confirmation by the Senate, pursuant to the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. I believe that the actions I took during the period I was serving as a recess appointee were legally authorized and entirely proper. To avoid any possible uncertainty, however, I hereby affirm and ratify any and all actions I took during that period.
    Dated: August 27, 2013.
    Richard Cordray,
    Director, Bureau of Consumer Financial Protection.
    [FR Doc. 2013–21275 Filed 8–29–13; 8:45 am]

  • Marc Savitt on 7/1/2014 10:38:02 AM

    The Supreme Court decision is a precedent and therefore does have an impact on the CFPB Director. He was appointment on the same day and in the same manner as those on the NLRB.

    Under Dodd-Frank, until the CFPB had a Senate confirmed Director, their authority was limited, especially when it came to non-banks. During the 18 months Mr. Cordray operated under his recess appointment, numerous rules and regulations were proposed and finalized. As the Director- Mr. Cordray signed those final rules. After his Senate confirmation, he re-signed those rules and regulations. This in itself is somewhat of an admission by the Director that his previous actions were NOT valid.

    If a mortgage originator acted in that capacity for 18 months without being licensed and became licensed at a later time, would the CFPB allow that MLO to go back and sign all those mortgage applications and be considered compliant? We all know the answer is NO! So why is it different for the CFPB? The rules are for everyone.

    I suspect someone who has been heavily fined by the CFPB, might test the waters with this decision.

    In my opinion, the CFPB is vulnerable with this issue.