By: Trish Turner
The U.S. Chamber of Commerce may sue the Obama
administration over President Obama’s controversial appointment of Richard
Cordray to head a controversial consumer financial board, officials from the
business group told Fox News on Wednesday after an unprecedented display of
executive power that is sure to poison already-strained relations with the GOP.
Chamber spokeswoman Blair Latoff and colleague Bryan Goettel
both told Fox News that their understanding is that “we are not ruling it
out.” However, they said they still “need to understand the specifics
of the appointment to determine if a legal challenge is even possible.”
Obama to Make Controversial Recess Appointment
President to appoint Richard Cordray as head of Consumer
Financial Protection Bureau
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The chamber was early in its criticism of the president’s
move Wednesday to appoint Cordray to chair the Consumer Financial Protection
Bureau in a move that invites legal challenge but which administration
officials say is perfectly within the president’s authority to do.
“To say we are disappointed in the move by the
president today would be a gross understatement,” Chamber President Tom
Donohue said in statement. “This controversial appointment is
unprecedented, constitutionally questionable, and puts the authority of the
director and the validity of the bureau’s work in legal jeopardy. What’s more,
it ignores repeated calls to reform the bureau by restoring basic checks and
Others are also questioning the validity of the president’s
move. Senate Minority Leader Mitch McConnell, R-Ky., who could become the
majority leader in 2012, released an ominous statement Wednesday, saying the
appointment “lands this nominee in uncertain legal territory, threatens
the confirmation process and fundamentally endangers the Congress’ role in
providing a check on the excesses of the executive branch.”
One senior GOP aide told Fox News to expect a lawsuit from
an outside group that would fall under CFPB’s regulatory jurisdiction since
Congress itself would lack the authority to sue.
“It’s our understanding that someone affected by the
CFPB would have standing here, not the House,” another aide told Fox
Business Network. “So some business that gets clobbered by the agency
The GOP aide added that aside from an almost immediate
challenge, even if Cordray moves into the post, he will face a wall of
opposition at every turn.
Cordray “will get absolutely nothing done. Also,
funding (for the CFPB) will be in some peril,” the aide said.
The White House might not mind a fight during a presidential
campaign year, as Obama looks to frame the battle as one against obstructionist
congressional Republicans who are against middle-class Americans.
“I nominated Richard for this job last summer, so you
may be wondering why am I appointing him today,” Obama told supporters in
Ohio, where Cordray appeared with him in Shaker Heights. “It would be a
good question. … The only reason Republicans in the Senate have blocked
Richard is because they don’t agree with the law that set up a consumer
watchdog in the first place. They want to weaken the law. They want to water it
Republicans made clear both during Cordray’s nomination and
on Wednesday that they have no problem with Cordray personally, but want
changes in the massive new watchdog agency, including a budget and nominee
subject to congressional oversight and other reforms in its wide-ranging
“The president should stop allowing his Chicago
political campaign to make his Washington policy decisions,” Rep. Patrick
McHenry, R-N.C., chairman of the Oversight Subcommittee on TARP, Financial
Services and Bailouts of Public and Private Programs, said Wednesday in a
statement in which he criticized Obama’s claims of transparency in his
administration. McHenry also invited Cordray to appear on Jan. 24 before his
committee to answer questions about how he would implement policies as head of
“There are legitimate policy concerns about the
structure of the CFPB. They can be reconciled, but the president refuses to
even have the conversation,” he said.
Cordray, who was successfully filibustered by Republicans
last year, will remain in the job until Jan. 3, 2014, unless confirmed by the
Senate sooner, an unlikely event given the current partisan move by the White
While controversial, nowhere in the Constitution is a recess
expressly defined, though the document does give the chief executive the
“power to fill up vacancies that may happen during the recess of the Senate.”
As a result, a loose understanding has arisen over the years
as to what constitutes a recess.
Most, including Obama’s own acting solicitor general, appear
to hold to a three-day minimum for a recess, arising from the congressional
adjournment clause in the Constitution which states that no chamber may break
for longer than three days without the approval of the other chamber.
In a 2010 Supreme Court case, “New Process Steel vs.
National Labor Relations Board,” acting Solicitor General Neal Katyal
referenced the three-day minimum, during which no recess appointment could be
made and cited a Department of Justice brief issued in 1993 by Attorney General
But the document is vague.
In the brief, which was used to argue against a controversial
recess appointment by former President George H.W. Bush, Reno called the
three-day recess a “requirement.” But it went on to say “the
Constitution provides no basis for limiting the recess to a specific number of
That does not negate the understanding that appears to have
arisen in modern times among members of Congress, Democrat and Republican
alike. Democrats in 2008 held the Senate in “pro forma” session to
block recess appointments by President George W. Bush. At the time, Obama and Vice
President Joe Biden, while serving in the Senate, strenuously argued against
such an exercise of presidential power.
When Bush appointed John Bolton as ambassador to the United
Nations, then-Sen. Obama said the nominee was, as a result of the temporary
position, “damaged goods.” Noting the Senate had rejected the nominee
— though unlike Cordray, Bolton faced bipartisan opposition — the senator
said the U.S. would have “less credibility” at the world body.
At a Foreign Relations Committee hearing, Biden said,
“No president is entitled to the appointment of anyone he nominates,”
adding, “That’s why they wrote the Constitution the way they did. It says
‘advice and consent.'”
According to a Congressional Research Service report, since
the administration of President Ronald Reagan, no recess appointment has been
bestowed upon a nominee during a recess that was shorter than 10 days.
Nonetheless, a senior administration official told Fox News
that the White House is on solid ground with the maneuver.
“They’re not in session,” the official said of the
Senate, noting that the Senate has stated that “that no business shall be
conducted during pro forma sessions” and the Senate “is unable to
receive appointments” during that time because it is not prepared,
regardless of the length of time in between, to conduct business during those
Thus, it is the interpretation of the White House that the
Senate is in fact “in recess” and the administration can make appointments.
Despite the predicted fight over the CFPB nominee, one
congressional GOP source predicted the fight will have no effect. The aide
sited polls that, according to the source, show Americans disinterested in the
watchdog agency, with few knowing about Cordray.
“It’s just not a ‘top of mind’ issue. It’s nowhere on
the radar of anyone,” the aide said.