The Cato Institute, a Washington, D.C.-based think tank, has called into question the legality of President Obama's Jan. 4 recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau.
Roger Pilon, vice president for legal affairs at the Cato Institute and director of Cato's Center for Constitutional Studies, notes that the appointment was ‘legally futile’ because it violates the Dodd-Frank Act, the 2010 legislation that created the bureau.
‘The Cordray appointment raises statutory problems as well, because the language of Dodd-Frank is clear: 'The [Treasury] Secretary is authorized to perform the functions of the Bureau under this subtitle until the director of the bureau is confirmed by the Senate in accordance with section 1011,'’ Pilon wrote in an article first published on The Daily Caller website and reposted on the Cato Institute website. ‘Cordray has not been 'confirmed by the Senate.' Therefore, he has no authority 'to perform the functions of the Bureau under this subtitle.'’
Pilon added that the president's decision to categorize the Senate's pro forma sessions as a ‘gimmick’ was a violation of presidential powers. Citing concerns raised by Professor John Yoo of University of California at Berkeley School of Law, Pilon warned that Obama's decision to dismiss the legitimacy of the pro forma sessions was a breach of the constitutional separation of powers.
‘As Professor John Yoo, noted, 'It is up to the Senate to decide when it is in session or not,'’ Pilon wrote. ‘Consistent with the separation of powers, 'the President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.'’
Pilon added that the Cordray appointment was timed for the president's re-election campaign.
‘This was politics – Chicago politics, plain and simple,’ he continued. ‘If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it. His 'contempt for Congress' is simply the centerpiece of his 2012 campaign strategy. If you can't run on your record, vilify Congress and run against it. One can only hope that enough Americans see through it.’