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A Blow to Obama’s Imperial Presidency
5 years ago

By Amy Payne

President Obama has gone around Congress in as many ways as he can find. One way is by abusing the presidential power to make appointments to government positions during a supposed Senate recess—in an attempt to avoid having the Senate confirm the nominees.

Last week, a three-judge panel of the D.C. Circuit Court of Appeals dealt quite a blow: It ruled that a number of President Obama’s “recess appointments” were invalid.

As Todd Gaziano, director of Heritage’s Center for Legal and Judicial Studies, said: “Our unilateral president must take his unilateral medicine.”

Heritage’s James Gattuso explains:

To sidestep opposition in the Senate, the President declared these to be “recess” appointments, invoking his prerogative to fill vacancies without Senate confirmation when that body is not in session. The action was roundly criticized on the grounds that although the Senate was not actively conducting legislative business, it was formally still in session.

The judges issued an even broader ground for striking down the unconstitutional appointments, holding that President Obama could make valid recess appointments only during an intersession “recess” that occurs between annual sessions of Congress, and that recess appointments also cannot be made unless the position becomes vacant during the Senate’s valid intersession recess. This brings up huge questions for all the unconstitutional appointees who have now been declared invalid—and the regulations they have created during their time in office.

There’s the National Labor Relations Board (NLR, which had three members appointed in this way. Gaziano notes that "13 months’ worth of rulings, regulations, and other actions by the NLRB are now in question, because without the illegal recess appointments the NLRB lacked a quorum to act during all that time.”

And then there’s the Consumer Financial Protection Bureau (CFP, whose director, Richard Cordray, was another of these invalid appointments. The bureau has been regulating away for the past year, but Gattuso writes that “the new rules adopted by the CFPB under Cordray will likely be invalidated.”

Gattuso describes the CFPB as "perhaps the least accountable entity in the federal government”—so this is good news.

The odds are that this imbroglio will stall the CFPB’s regulatory agenda for some time. That, however, is no bad thing for consumers. The rules adopted by the CFPB, by limiting lender activity, decrease options for consumers and increase costs for mortgages and other loans. Reining them in could actually be a boon for consumer welfare.

There’s a reason the Senate is supposed to confirm these nominees—and in the case of the CFPB, the agency itself merits closer scrutiny. The judges’ decision is a welcome check on Obama’s abuses of power.



This post was modified from its original form on 31 Jan, 12:41

This post was modified from its original form on 31 Jan, 12:42
5 years ago

Linda: I'm not used to seeing GOOD NEWS, or even promising news.

Is this news that is carried withing the above post somewhat akin to the "beginning of the end?"

By that, I mean, has the Justice Department finally gotten wise to all or at least most of what is going on, and will they hold their ground going forward, when new and even worse decisions are made in an unlawful manner, and put a stop to them before the citizenry gets hurt.

Thank you very much for this news and let's hope that it's the start of something new.


5 years ago

There is real abuse on the Consumer Protection appointment since that agency itself is an abuse of the Constitution in the way the law was written and that abuse could not take effect until the appointment was made since it was a new agency. The Consumer Protection Agency is not subject to any oversight by the government at all including Congress. It was put under the Fed and the financing comes from the Fed as well. So we have an agency that is a law itself with no one to check what it does or even any way to control its abuses.

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