No one any longer contests that President Barack Obama acted in excess
of his constitutional powers when, on January 4, 2012—a day on which
the Senate was not in recess—he purported to grant a recess appointment
to Richard Cordray to head the Consumer Financial Protection Bureau
(CFPB). Yet, in a troubling decision issued last week, the U.S.
District Court for the District of Columbia indicated that it was of no
moment that for a period of 18 months Cordray, although no more than a
private citizen, issued dozens of significant decisions in the name of
CFPB.
Judge Ellen Huvelle ruled in State National Bank of Big Springs v. Lew
that Cordray, after finally receiving Senate confirmation, could simply
wave a magic wand and retroactively approve all of his unauthorized
acts. That decision eviscerates the Constitution’s explicit limitations
on the President’s appointment powers and encourages future Presidents
to disregard those limitations.
The Appointments Clause
Violation
President Obama attempted to make several recess appointments on
January 4, 2012, including Cordray’s as well as several appointments to
fill vacant slots on the National Labor Relations Board (NLRB). The
Supreme Court disapproved President Obama’s efforts in NLRB v. Noel
Canning, ruling unanimously that the recess appointments were
unauthorized because the Senate remained in session on that date.
So what to do about
official actions taken by the improperly appointed officials?
NLRB and CFPB adopted diametrically opposed approaches. NLRB carefully
reconsidered each of its actions taken while the recess-appointed
members were purporting to serve on its five-member board, and
ultimately issued new decisions.
In sharp contrast, CFPB’s Cordray simply rubber-stamped every action he
took during the 18 months (from January 2012 to July 2013) that he
improperly exercised authority.
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In
an interview with Telemundo, Nieto also announced that “further action
will be taken by the Mexican government to ensure every single citizen
of Mexico currently residing in the United States is brought home
safely.” “We will not play around with something as important as the
lives of our people. In our eyes and the eyes of every Mexican in the
world, Donald Trump is a xenophobic, bigoted terrorist and imperialist
who will ruin a country that was once a true friend of Mexico.”
