What They're Saying: CFPB Director Appointment is Invalid, Illegal, Unconstitutional
Posted by on April 23, 2013

“President Obama's attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau is more than an unconstitutional attempt to circumvent the Senate's advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

-Ed Meese, Former Attorney General and Todd Gaziano, Director of Heritage’s Center for Legal and Judicial Studies

“There is little question that this applies to the Cordray appointment.”

-Deepak Gupta, a former Senior Counsel at the CFPB

"If the NLRB appointments were invalid under the reasoning employed by the court, then the appointment of Cordray was clearly invalid. There is this huge cloud now hanging over the CFPB."

-Alan Kaplinsky, Attorney at Ballard Spahr

“Obama's purported recess appointments are unconstitutional and unprecedented”

-Elizabeth Garvey, Legal Policy Analyst in the Heritage Foundation's Center for Legal & Judicial Studies

“What's next? Appointing executive branch officials when the Senate is taking a lunch or bathroom break?”

-John Berlau, Director of the Center for Investors and Entrepreneurs at the Competitive Enterprise Institute

"The reasoning of this decision applies directly to the Richard Cordray situation."

-Noel Francisco, the lead attorney for Noel Canning in the appeal

“The appeals court said that Congress was not in recess so these appointments could not be made,” he said. “That will help the suit [against Richard Cordray and the CFPB].”

-Todd Zywicki, George Mason University Foundation Professor of Law

“Richard Cordray, who received a purported recess appointment on the same day and in the same manner as the three invalid NLRB members, would have been the first head of that agency. Thus, no prior head of the agency could have made lawful delegations of authority. Moreover, the CFPB’s organic statute provides that no acting head may issue regulations. The eventual effect of today’s decision on pending and future CFPB actions will take many months to sort out, but the rest of the D.C. circuit is bound by the ruling today unless the entire appeals court (as opposed to the three-judge panel) or the Supreme Court reverses it.”

-Todd Gaziano, Director of the Heritage Foundation’s Center for Legal and Judicial Studies

“By unilaterally appointing Richard Cordray to lead the Consumer Financial Protection Bureau (CFPB), President Obama made an unconstitutional appointment to an unconstitutional office…The President chose to disregard this constitutional check and balance, and instead appointed Mr. Cordray and the new NRLB members without the Senate’s advice and consent. He called this a ‘recess appointment,’ but it was no such thing, because there was no ‘recess.’ The Senate chose not to adjourn for more than three days at a time—a well-established definition of ‘recess’ that President Obama’s own Justice Department reiterated in recent Supreme Court litigation.”

C. Boyden Gray, former White House Counsel and former Ambassador to the European Union

The opinions expressed below are those of their respective authors and do not necessarily represent those of this office.
  • ebima ebimablog commented on 5/4/2013
    “The appeals court said that Congress was not in recess so these appointments could not be made,” he said. “That will help the suit [against Richard Cordray and the CFPB]......that is a good news to hear
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