Few lawmakers have expressed as much outrage over President Obama’s unconstitutional “recess” appointments as Sen. Mike Lee (R-UT). He was among the first to warn about the consequences of the president’s unilateral action on Jan. 4.

More than a month later, a new director is running the Consumer Financial Protection Bureau and three members of National Labor Relations Board are conducting business—all in blatant violation of the U.S. Constitution, Lee said in a recent interview with The Heritage Foundation.

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President’s appointment of liberal former Ohio Attorney General Richard Cordray to head the powerful Consumer Financial Protection Bureau (CFPB) was a direct assault on the Constitution and the law causing constitutional scholar Jonathan Turley to remark that President Obama has surpassed Richard Nixon in “the development of an imperial presidency of unchecked executive powers.”

Cordray is well aware that the Constitution provides the president with the power of appointment when the Congress is not in session.  But the Congress was not in recess when the President appointed Cordray.  Adding insult to injury, the 2010 law that created the CFPB included a section that says many of the bureau’s new powers are to be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.”  The Senate, obviously, never confirmed Cordray.

Despite these constitutional and legal roadblocks, Cordray has assumed the full power of the office and has started the process of regulating the economy in earnest.

In Birmingham, Alabama, Cordray held a field hearing laying the groundwork for a regulatory assault on the short-term lending industry, as well as, the mortgage and student loan industry.  Cordray seems unconcerned of the constitutional and legal challenges ahead.  He told the Hill newspaper, “I’m going to leave that to others … lawyers are digging into it,” when asked if his appointment would survive a legal challenge.  But he added that “the position was long overdue to be filled.” “We’ve got a lot of work to do for the public to make these markets function effectively,” he said.

Cordray, in a few sentences was able to articulate the president’s view of the Constitution and the economy.

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The Department of Justice on Thursday announced, in a memo, that President Obama acted consistently under the law by appointing Richard Cordray, to head the new Consumer Financial Protection Bureau, and two individuals to the National Labor Relations Board (NLRB). The DOJ asserted that the pro forma sessions held in the Senate every third day do not constitute a body that is functioning; hence, the Senate, according to the DOJ, was in recess, and, therefore, the president’s appointments during that “recess” are legal.

Virginia Seitz, assistant attorney general for the Office of Legal Counsel, said her office concluded that Congress may only stop these appointments “by remaining continuously in session and available to receive and act on nominations,” not through pro forma sessions.

But, the DOJ memo not only addressed legal issues. It also blamed Republicans for the recent use of pro forma sessions, observing that 20 Senate Republicans and 80 House Republicans asked House Speaker John Boehner to refuse to pass any resolution allowing the Senate to recess or adjourn for more than three days. The hypocrisy in the memo is that Senate Majority Leader Harry Reid (D-Nevada), who previously held pro forma sessions in order to block appointments by President George W. Bush, said that he supported President Obama’s decision to ignore the pro forma sessions in order to push through his appointments.

The DOJ’s memo has already quelled some potential legal challenges to the appointments, perhaps most notably from the U.S. Chamber of Commerce, whose president, Thomas Donohue, went from a condemnation of the appointment of Richard Cordray, to the statement: “I’m sure the Department of Justice gave it a very fair look.”

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Apparently, “respecting the U.S. Constitution” didn’t make it onto President Obama’s 2012 New Year’s resolution list, as evidenced by his “recess” appointment of anti-business extremist Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Just an few hours later, Obama made three additional appointments to the National Labor Relations Board (NLRB), which has become little more than a Big Labor battering ram under this president.

Obama is terming his appointments “recess” appointments. They are nothing of the sort, because Congress is not in recess. Article I, Section 5, Clause 4 of the U.S. Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days …” To prevent any recess appointment, the Republican-controlled House has refused to consent to Senate adjournment, resulting in the Senate coming into pro forma session every three days. But as Ed Meese, who served as Attorney General under Ronald Reagan, points out: these pro forma sessions aren’t gimmicks. The two-month extension of the payroll tax holiday was approved during a pro forma Senate session.

But in an unprecedented power grab, Obama has decided that he can decide when Congress is or is not in session. Meese rightly calls it a “constitutional abuse of a high order.” If this abuse stands, the U.S. Senate’s constitutional role to advise and consent in the confirmation of key executive appointees, already undermined by Obama’s many czar appointments, could become moot. (more…)

Forty-four of 46 Republican Senators vowed they would not approve “any consumer financial bureau director unless the agency was put under a five-member outside board, had its work checked periodically by bank examiners and had its budget approved by Congress rather than the Federal Reserve.”

So when Republicans refused to confirm the President’s nominee, Richard Cordray, to head the Consumer Financial Protection Bureau, America’s number one duffer shouldn’t have been surprised.

Senate Republicans maintained that voting down the nomination of Cordray had everything to do with the Dodd-Frank financial reform agency lacking oversight, and nothing to do with the candidate Obama chose to head it up. In other words, Republicans wanted to take consumer protection a step further than the President was willing to go, vowing that they’d agree to confirm a director, but not before additional consumer safeguards and supervision are put in place.

As for Obama’s nominee Richard Cordray, besides being the former Attorney General of the state of Ohio and acting as chief enforcement officer at the Consumer Financial Protection Bureau for the last year, Cordray is a five-time undefeated Jeopardy champion. Which may be why, when chiding Republicans for blocking his appointment, the President kept mentioning game playing.

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In a Washington Post editorial Thursday, Edwin Meese, the former U.S. Attorney General under President Ronald Reagan, and Todd Gaziano, Director of the Heritage Foundation’s Center for Legal and Judicial Studies, wrote that President Obama’s unilateral appointment of three individuals to the National Labor Relations Board, and of Richard Cordray to head the new Consumer Financial Protection Bureau, while the Senate was not in recess, is a “breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

The authors asserted:

…never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

The beauty of this editorial is that Mr. Meese and Mr. Gaziano provide instruction to handle this rogue president who continues to thumb his nose at the Constitution. They continue:

President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules…Congressional leaders of both parties must vigorously (though thoughtfully) defend their prerogatives. Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all “must-pass” legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.

The authors conclude:

If Congress does not resist, the injury is not just to its branch but ultimately to the people.

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When President Obama pronounced the Constitution legally dead at a Cleveland campaign stop, Senator Sherrod Brown (D-OH) was nowhere to be found. Did the president reach a partisan bridge Sherrod refused to cross? Or was Sherrod’s “scheduling conflict” as politically motivated as President Obama’s latest stunt?

The president has a 41% approval rating in Ohio, where Sherrod Brown faces reelection this fall. Last November, Ohioans voted to block Obamacare – for which Sherrod was the deciding vote – by a margin of more than 1 million.

In other words, Sherrod’s absence didn’t indicate a change of heart from the class warfare he spewed on the Senate floor when Republicans blocked Rich Cordray’s appointment to CFPB:

Chris Dodd and Barney Frank could hardly ask for a more devoted apologist! Sherrod’s “cop on the beat” quip wouldn’t be disgustingly deceptive if police also made up laws as they went along.

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President Obama is hoping to capitalize on his controversial decision to appoint Richard Cordray as director of the Consumer Financial Protection Bureau. Less than 12 hours after making the announcement, Obama’s campaign sent a fundraising email seeking up to $2,500 from supporters.

The purported “recess” appointment enraged conservatives because the Senate isn’t even in recess. Senators never passed a resolution to adjourn, meaning it is officially still in session.

That didn’t dissuade Obama, however. Now the president is seeking to use the publicity to raise money for his re-election campaign.

“We can’t afford to continue allowing Wall Street to write its own rules. But today’s action by the President is already coming under partisan attack, which we expect to intensify in the days to come,” wrote James Kvaal, national policy director at Obama for America, in Wednesday night’s email.

The fundraising pitch was disguised as a petition to supporters. Only when recipients click on the link to “stand with President Obama and Richard Cordray” and sign the petition are they taken to a fundraising page with a form to donate up to $2,500 to Obama.

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(Reuters) – President Barack Obama plans to use a recess appointment to install Richard Cordray as head of the country’s new consumer financial protection watchdog, sidestepping Republican congressional opposition to his pick.

“Today in Ohio, President Obama will announce the recess appointment of consumer watchdog Richard Cordray,” White House communications director Dan Pfeiffer announced in a tweet.

The Consumer Financial Protection Bureau was created by the 2010 Dodd-Frank financial oversight law to police the market for consumer products such as credit cards and mortgages.

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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.

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WASHINGTON (AP) – Senate Republicans have blocked President Barack Obama’s choice to head the consumer protection agency that was created after the 2008 financial meltdown.

His nominee, former Ohio Attorney General Richard Cordray, ran into near-solid opposition from Republicans.

As a result, Democrats couldn’t muster the 60 votes needed to move ahead on the nomination. Only one Republican joined Democrats in voting Cordray.

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When asked about the “Occupy Wall Street” movement in October, Massachusetts Senate candidate Elizabeth Warren praised it to the hilt. “I created much of the intellectual foundation for what they do,” she told the Daily Beast. Yet when pressed in November on the OWS adherents’ increasingly violent tactics, she told a Boston TV interviewer: “Everybody has to follow the law. There’s no exception on that.”

But Warren’s apparent disavowal of the tactics of OWS and like-minded community organizers may not be shared by Richard Cordray, President Obama’s nominee to head the Consumer Financial Protection Bureau that Warren designed. Cordray has long supported ESOP, formerly known as the East Side Organizing Project, an Ohio housing advocacy group that has distinguished itself by storming into banks and launching plastic “shark attacks” on the lawns of private homes. ESOP’s leaders brag about what they call their “organized hits” on banks and other targets, which have included the home of the late Congressman and Housing and Urban Development Secretary Jack Kemp.

As Ohio treasurer and attorney general, Cordray lobbied for state and federal funding for ESOP and publicly praised funders of the group as “the real heroes.” And in a highly unusual move for a nominee awaiting confirmation, Cordray returned to Ohio in October to be the keynote speaker at the group’s gala dinner.

Since his nomination in July to head the bureau created by the Dodd-Frank financial “reform” law, Republicans have held fast against confirmation. But largely, they haven’t made Cordray’s state record an issue. They have focused instead on structural defects in the agency’s design, such as the massive new powers the bureau will have to ban financial products it deems “abusive” and its lack of accountability to Congress.

These criticisms are valid, but they may not be enough to hold Senate Republicans together without criticism of the nominee’s merits. Just before Thanksgiving, Scott Brown (R-Mass.), facing a tough reelection challenge from Warren, became the first GOPer to commit to voting for Cordray. The Democrat-controlled Senate plans to hold a vote on his confirmation this week, possibly as early as Tuesday. Human Events‘ Neil McCabe reports that in addition to Maine Sens. Susan Collins and Olympia Snowe, other GOP targets for Cordray supporters include Alaska’s Lisa Murkowski, Tennessee’s Bob Corker, and Cordray’s home state Senator Rob Portman of Ohio (though Portman seemed to reaffirm his opposition in a statement to Human Events last week).

But Cordray’s support of ESOP needs further scrutiny, particularly since as head of the bureau, he will have the power to help funnel federal support to ESOP and like-minded community organizers with virtually no oversight by Congress. And a report by Bloomberg News suggests that Cordray specifically blessed ESOP’s “organized hits” on banks and homes.

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When Scott Brown upset the Massachusetts Democratic establishment by winning the Senate seat held by Ted Kennedy for a generation, he ran as a Republican. This cycle, facing the “founder” of the Occupy Wall Street movement, Elizabeth Warren, he appears to be running away from conservative principles.

Brown’s most recent capitulation is his support for a floor vote for President Obama’s nominee for the uber-regulatory agency known as the Consumer Financial Protection Bureau (CFPB). Brown’s announcement undercuts not only his Republican colleagues who are fighting to limit the power of this new government agency but of the principles of limited government he professes to support.

Unfortunately, Brown may not be alone. Sen. Rob Portman (R-OH) is purportedly seeking a deal with the White House to get fellow Ohioan Cordray confirmed despite ethical questions about his behavior as the state’s Attorney General. Insiders are always concerned about the Maine Senators and Alaskan Lisa Murkowski. If a chain is only as strong as its weakest link, Portman, Collins, Snowe and Murkowski need to buck up and support their colleagues.

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When Sen. Dick Durbin (D-IL) was convinced by a retailing giant to enact legislation imposing price controls on credit card transactions he engineered a massive wealth transfer from credit card companies to retailers – a cost that would ultimately be borne by consumers.  Opponents of Durbin’s fee warned of the consequences of his actions including increased costs for consumers and elimination of credit card incentive programs.  As Milton Friedman said, “there is no free lunch.”

After the government imposed their fee cap, the marketplace responded predictably.  Banks, including Bank of America, raised fees on consumers in order to cover the cost imposed by the Durbin Amendment.  Caught with his tail between his legs, Durbin and his allies declared war on the banks.  In a letter to the newly codified Consumer Financial Protection Bureau (CFPB), Durbin accused banks of trying to “sneak fees past” consumer and “urge[d]” the CFPB to “swiftly require financial institutions to post on their websites a standardized, concise and consumer-friendly disclosure form that lists the fees and key terms associated with checking accounts.”

Whether Durbin is successful in fighting back remains to be seen but what we do know is we now have a government agency at the disposal of elected officials that will police marketplace policies, fee structures and pricing decisions.  If it’s not bad enough that the Bureau will make regulatory decisions based on the political whims of politicians, their own justification for regulations are worse.  Much worse.

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Washington public policy is replete with examples of government regulators thinking they know best, imposing new government rules that then exacerbate the existing problems. As things become worse, they blame the free market and call for more government regulations to fix the burdens they created.  Of course, just as it was the first time, the cure is worse than the disease. And the vicious cycle continues.

Massachusetts Senate candidate Elizabeth Warren could be the poster child for the law of unintended consequences.  Warren’s career was built upon advocacy of government regulations that created bigger problems than those she initially addressed.  As the problems compound, so does her call for even more government red tape.

All of this mader her a hero to the progressive community, a Harvard professor, an advisor to the president and a creator of a new regulation-pushing agency of government known as the Consumer Financial Protection Bureau (CFPB).  Maybe once, she will get something right but don’t hold your breath. The housing market collapse is a case in point.

In 1994, President Clinton and his cronies laid the groundwork for the creation of the Housing Bubble and the Wall Street crisis a decade later.  The Investors Business Daily uncovered a “smoking gun” memo that declared war on a near invisible enemy – racism is mortgage lending:

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The #OccupyWallStreet movement has an agenda and has made it available for all to see.  Among their demands is that government eviscerate existing contracts by “eliminating all debt, everywhere.”  Imagine there was a government agency with the power to make decisions like that.  With a sleight of hand, one person could vitiate contracts and overturn years of business decisions, destroying marketplaces through government intervention.  You don’t have to imagine very long.  If President Obama and his progressive supporters get their way, the Director of the newly created regulatory agency called the Consumer Financial Protection Bureau (CFPB) will have similar powers.

Created by the flawed Dodd-Frank financial reform legislation, the CFPB Director will be the most powerful regulator in government with little checks and balances from Congress.  President Obama said last week that if confirmed, the Director of the Bureau would be able to overturn any private market action it deems abusive.  Obama specifically cited the increase in debit card fees as an example of an area where the CFPB could take action to overturn the fee.

Let that sink in for a moment. A legitimate, legal business in America raises its prices by $5 and some bureaucrat would veto it, or worse, punish the business for raising its prices – in order to “make less profit,” as the president said.  This is the world Obama and the Democrats seek, a world in which an elite few are empowered to override the marketplace based on their own whims or, in this case, to mollify their voters.

No one likes bank fees, but in a market economy, you could take your money from one bank and move it to another. Avoiding this and keeping you happy is what keeps your bank in line. That’s how the market works, but that’s not good enough in Obama-world. On this fantasy island, the government singlehandedly keeps the electoral mobs happy through the utilization of a financial death squad. It’s government by organized mob.

This case becomes even more ridiculous when you consider the fact that the reason the banks are adding new fees is to cover the cost of a new federal price fixing law that took billions from banks and allocated it to giant retailers like Wal-Mart. And even more absurdly, the pricing fixing law that caused the fee increase is the very same law that created the agency that Obama wants to use to overturn the fee increase.

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Richard Cordray, President Obama’s pick to lead the Consumer Financial Protection Bureau, won approval from the Senate Banking Committee last week on a party-line vote. His confirmation to run the new agency faces fierce opposition from Republicans, who have vowed to block Senate approval until reforms are made to the agency.

As the ranking Republican on the Banking Committee, Sen. Richard Shelby (R-AL) is leading those calls for reform. In an interview at The Heritage Foundation this week, Shelby criticized Obama for failing to respond to the GOP’s suggested reforms for the CFPB.

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In the pitched battle over whether government should take over our health care system, a group of pro-life Democrat congressmen held the line to oppose the legislation because they knew the bill authorized funding for abortion.  Under intense pressure from the president and their pro-choice comrades in the Congress, the group, led by Rep. Bart Stupak (D-MI) flip-flopped when they received a letter from the president ensuring that government would not spend money for abortion.  They were had.

Now Sen. Rob Portman appears ready to “pull a Stupak.”  Under pressure from Democrat Sen. Sherrod Brown, Portman appears ready to cut a deal to confirm former Ohio Attorney General Richard Cordray to a five-year term to head the super-regulatory agency known as the Consumer Financial Protection Bureau (CFPB).

Word on Capitol Hill is that Portman has assured Cordray he has no problems with his nomination and is asking for assurances that his concerns about the Bureau will be address – not in legislation, but in a letter.  Has Portman learned anything from the Stupak incident?  Apparently not.

Unlike Portman, Sen. Richard Shelby (R-AL) is taking a principled stand against the creation of a new super regulatory agency and is not shaking in his boots.  Shelby has organized his colleagues who have pledged to oppose the nomination of Cordray or any other nominee unless the Bureau is reformed.  Unlike Portman, apparently, Shelby is smart enough to demand real statutory changes as opposed to “promised” changes.

The CFPB was structured in a way to give huge, and perhaps unconstitutional, power to its Director.  Alan Raul, who served as general counsel of the Office of Management and Budget and associate counsel to President Ronald Reagan, described the CFPB’s power as “an independent agency on steroids because Congress essentially exempted the director from any meaningful accountability or strong presidential oversight.”

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Hopefully, it is not an ominous sign of things to come.

Last week, the Senate confirmed former Kentucky insurance regulator S. Roy Woodall for the one voting position on the federal Financial Stability Oversight Council (FSOC) reserved for someone with insurance expertise. The term is for six years.  The FSOC is in charge of monitoring the financial system to guard against the failure of the largest bank holding companies and non-bank financial institutions.

For the past year, Republicans in the House and Senate have worked together to prevent the approval of numerous president appointments both through regular order and through the use of recess appointment authority.  By keeping the House from adjourning when vacation and breaks come, the president has been unable to exercise his power thus sparing the nation from another round of liberal appointments that can do great damage to the country.

Because the confirmation process is often one of compromise and deal making, some worry about the possibility of a deal involving Richard Cordray and the Consumer Financial Protection Bureau (CFPB).

Especially in light of the fact that the Senate Banking Committee has called a vote on the Cordray confirmation itself this Thursday, October 6.   Sources in the nation’s Capitol have told Big Government that liberal Sen. Sherrod Brown (D-OH) is pressuring Sen. Rob Portman (R-OH) to break the logjam, as Cordray is from Ohio.

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If the American Left has a Joan of Arc, her name would be Elizabeth Warren.  The Harvard professor was the designer and creator of the Consumer Financial Protection Bureau (CFPB), the independent regulatory agency that was given the power to regulate every financial transaction in America without proper checks and balances from Congress.

The plan was for Warren to head the Bureau and conduct a reign of regulatory terror on the economy.  But even President Obama got cold feet.  Warren was too radical to be confirmed by the Democrat-controlled Senate.  So Warren picked her replacement, Ohio Attorney General Richard Cordray, packed her bags back to Massachusetts and declared a run for the US Senate.

The arrogance of power and the ignorance of history may be the best way to describe Warren and the government agency she concocted.  The philosophy behind the Bureau is simple – the learned and intelligencia must control the marketplace in order to protect the simple-minded.

We were given a little insight into her philipsophy by a person who videotaped a recent campaign appearance.  In Warren’s worldview, your success is dictated not by your efforts to work hard or your ingenuity, but by the state.

Warren addressed the issue of class-warfare in a manner appropriate for the Harvard faculty lounge.

“I hear all this, you know, ‘Well, this is class warfare, this is whatever.’ No. There is nobody in this country who got rich on his own —nobody. You built a factory out there? Good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police-forces and fire-forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory — and hire someone to protect against this — because of the work the rest of us did.

This arrogance extends beyond a philosophical debate.

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