Friday, January 06, 2012

House Oversight Chair Asks DOJ for Information About Cordray Recess Appointment

In a letter to Attorney General Eric Holder, House Financial Services Chair Spencer Bachus (R-ALA) asked for information about the recess appointment of Richard Cordray to be Director of the Consumer Financial Protection Bureau, which the Chair described as a matter of significant public interest and importance. Chairman Bachus noted that, by launching its non-bank regulatory program, the CFPB apparently views the appointment as sufficient to activate rulemaking and other authorities pursuant to Section 1066 of Dodd-Frank, even though that provision on its face conditions the exercise of these authorities on Senate confirmation of a Director.

In order to assist the Committee in reviewing this matter, Chairman Bachus asked for a response to three questions by January 20, 2012. First, he asks if the White House sought DOJ’s advice on any aspect of the appointment and, if so, copies of any documents reflecting such advice. Second, given that the Senate has been meeting in pro forma session once every third day, and no adjournment resolution has been passed by either house of Congress, the Chairman would like DOJ’s view on whether the Senate was in recess at the time of Mr. Cordray’s appointment such that the President could lawfully exercise his recess appointment authority.

Third, Chairman Bachus asks if it is DOJ’s view that the Bureau Director position was a vacancy that happened such that the President was authorized to constitutionally fill it. If so, the Oversight chair asks how DOJ would reconcile that view with the Vacancies Reform Act (P.L. No. 105-277), which purports to codify aspects of the exercise of the recess appointment power and does not appear to provide that a newly-created office like CFBP Director is vacant.