Bachus: CFPB Recess Appointment Would Go Against Constitution

In an editorial published by Politico late last week by House Financial Services Committee Chairman Spencer Bachus, the congressman says that a recess appointment of the new Consumer Financial Protection Bureau director would be “inconsistent with the Constitution.”

The nomination, which must be made by the president and confirmed by the Senate, has been the subject of widespread speculation and discussion. While Republican representatives have made numerous efforts to block the appointment of Professor Elizabeth Warren to lead the bureau, some believe President Obama will use a Senate recess as an opportunity to appoint Warren at a time when Senate confirmation will not be required.

Meanwhile, Bloomberg News reported today that a group of 89 House Democrats signed a letter to President Obama urging him to make a recess appointment of Warren. “If Republicans in the Senate indeed refuse to consider her, we request that you use your constitutional authority to make her a recess appointment,” Bloomberg quoted from the letter.

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“A recess appointment in this circumstance would be inappropriate and is inconsistent with the Constitution,” Rep. Bachus writes. “…the president has the ‘power to fill up all vacancies that may happen during the recess of the Senate.’ But this directorship did not ‘happen’ to become vacant. It is a position that never before existed. Thus, there is no vacancy to fill.”

“But even if the courts disregard the Constitution’s text and sustain a recess appointment to fill a position that never before existed—and thus has never been ‘vacant’—” he writes, “the uncertainty arising from the appointment, the questionable validity of whatever regulations are adopted by this ‘director’ and the inevitable litigation are all strong policy reasons that the president should avoid trying to end run the requirement of Senate confirmation.”

View Rep. Bachus’s column.

Written by Elizabeth Ecker