January 5, 2012 11:55AM

A Response to Konczal on Cordray Recess Appointment

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s alls.” — Lewis Carroll

Apparently some took issue with my concern, expressed yesterday, that President Obama’s “recess” appointment of Richard Cordray to head the Consumer Financial Protection Bureau, might have some legal and constitutional issues. One of the concerned was my friend Mike Konczal at the Roosevelt Institute.

I’ve always been impressed with Mike Konczal’s ability to say so little in so many words. His basic claim is that this is no different than any other recess appointment because Section 1011 of Dodd‐​Frank states the appointment is subject to the “advice and consent of the Senate” which he sees as meaningless boilerplate. He cites a Congressional Research Service report as saying that a recess appointee has the same powers as a regular appointee. On its face, that is correct. Had there already been a Senate confirmed Director in place, with the additional powers over non‐​banks in place, then any future recess appointee would have those same powers.

The problem with that line of thought is that these powers are not already in place, something not addressed in the CRS report. This is very real issue (not a “zombie” as Konczal would claim). During my service on the Senate Banking Committee, when we were drafting language to create the new regulator for Fannie and Freddie, we were very aware of this danger, as it had been a problem when the OTS and FHFB were created out of the FHLBB. We didn’t wish to have a similar problem, so we crafted language to avoid it (see Section 1101 of HERA). The problem is that Dodd‐​Frank did not include such language (one of many drafting errors in the bill).

Now it’s never enough for Konczal to just disagree, he also has to be disagreeable when doing so (I assume it plays well to the nasty echo‐​chamber that is New York Liberalism). He snidely says, “I like how libertarians at Cato are all about the Constitution, with grants the President the power to fill up vacancies, until they aren’t.” Well to help him out, I am all about the Constitution as it is written. And the Constitution’s Article 2, Section 2 clearly says “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate”. Did the vacancy of the CFPB director happen during a recess? Not under the clear language of the Constitution (Mike, I’d be happy to send you a Pocket Copy).

So there you have it. Konczal’s argument boils down to two issues, that in Konczalian Newspeak “advice and consent of the Senate” really means “unilateral action by the President” and that “may happen during the Recess” actually means “whenever the President decides.” Now one has to remember that Konczalian Newspeak changes when the President is a Republican.