Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions. On each of these fronts, his defense falls short.
Mark Cuban and his attorney wrote a piece in the Wall Street Journal today that is worth reading. Cuban successfully beat back insider trading charges by the Securities and Exchange Commission. To do so, he took the relatively unusual step of going to trial instead of settling with the SEC. Defending oneself against an SEC enforcement action is costly financially, but can also take a toll on one's mental and physical health, family life, and career. For that reason, many people choose--regardless of the validity of the SEC's allegations--simply to settle and move on with life as best they can. Cuban maintains that the SEC should operate under a rule currently applicable in the criminal context that requires the government to turn over to the defense material exculpatory evidence. Cuban's commentary raises broader questions about regulatory agencies' enforcement programs.
Earlier this month, the Bureau of Consumer Financial Protection and the Department of Justice brought an $80 million discriminatory lending action against Ally Financial. Ally, a major recipient of TARP bailout money, allegedly charged different rates based on the race or national origin of borrowers. The loans at issue do not include information about the race or national origin of the borrowers, but "the CFPB and the DOJ assigned race and national origin probabilities to the applicants" based on a geography-based and name-based methodology. In other words, the government's discriminatory lending action is rooted in its assumptions about whether or not borrowers were minorities. Illegal discrimination in lending is just as unacceptable as it is in other contexts, but punishing lenders based on government guesses about whether discrimination occurred is not the solution.
Earlier this week, the Bureau of Consumer Financial Protection filed its first lawsuit against an online lender. The alleged offense was making loans in violation of state usury and licensing laws. The Bureau alleges that, because the loans were illegal under state law, making them and collecting them violated the federal prohibition against unfair, deceptive, and abusive acts and practices. Some state attorneys general have filed their own suits on the same facts. This move by the Bureau raises a number of questions. Should the Bureau target high-cost consumer financial products even if the costs are disclosed? The loans in question come with very high interest rates, but the Bureau's complaint reproduces a table from the offending lender's website that clearly sets out how high those rates are, how many payments will have to be made, and what the amount of each payment will be. Is it the role of the new federal consumer finance regulator to enforce state laws designed to prevent consumers from taking out certain types of loans? States presumably adopted those laws with the view that the prohibitions were of sufficient importance for the states to dedicate the necessary resources to enforce them. But should a federal agency's resources be spent on enforcing consumer lending limits the merits of which it has not considered? Even well-intentioned caps constrain credit availability to consumers, which may lead to more serious financial consequences to the consumers than paying high interest rates would have. Before championing these laws, the Bureau ought to undertake the necessary analysis to determine whether they hurt or harm consumers.
The CFPB, the consumer protection watchdog created by the Dodd-Frank Act, is coming after debt collectors.
Early this month the agency issued a notice of proposed rule making on the topic of debt collection practices.
The CFPB views debt collection as a significant part of the economy with substantial effects on consumers, noting that, "The use of debt collection litigation to recover on debts has grown to become a critical part of the debt collection industry, with collection law firms having an estimated $2.4 billion in revenues from collections in 2011."
Debt collection, however, is already the subject of extensive federal regulation through the Fair Debt Collection Practices Act, or "FDCPA". The CFPB, however, views consumers complaints and lawsuits against debt collectors under this law as indicating the need for additional regulation:
"Despite the enactment and enforcement of the FDCPA and other measures, protection problems related to debt collection have persisted. For many years, consumers have submitted more complaints to the FTC about debt collectors than any other single industry."
According to the CFPB, "Consumers most commonly complain to the FTC that collectors harass them, demand amounts that consumers do not owe, threaten dire consequences for non-payment, or fail to send required notices."
The CFPB writes that, "Not only do consumers complain about debt collectors, but they also file thousands of private actions each year against debt collectors that allegedly have violated the FDCPA. The number of these actions filed in Federal district court increased from 3,215 in 2005 to 11,811 in 2011, with increases observed each year."
With an administration that is struggling to change the topic away from healthcare and towards topics that can be managed without further Congressional action, look for the administration to shine a light on the CFPB's rulemaking activity and its emphasis on additional consumer protection regulations.
Yesterday, the Consumer Financial Protection Bureau won its latest battle against accountability. Federal District Court Judge Ellen Huvelle dismissed a constitutional challenge brought by eleven states, a small bank, and two nonprofits against three of Dodd-Frank's sixteen titles, including the title that established the CFPB. The government defendants, which included the CFPB and Treasury, argued that the case should be dismissed for lack of standing and lack of ripeness. The court agreed that plaintiffs had not been injured and their claims were not ripe for review, but employed some strained reasoning to get there. A few of the court's puzzling assertions are described below.
Michal Benari
Summer Intern, Manhattan Institute's Center for Legal Policy
A third federal appeals court declared President Obama's recess appointments to the National Labor Relations Board (NLRB), a 5-member board which referees labor-management disputes and oversees union elections, to be unconstitutional, on the grounds that the Senate was not officially in recess during the extended holiday break in January 2012 when these three contentious vacancies were filled. The significance of the ruling was depicted on Wednesday, as the Fourth Circuit refused to enforce two NLRB decisions, together with the dissent in federal appeals courts in both Philadelphia and the District of Columbia. Subsequently, the U.S. Supreme Court has granted cert. to hear the D.C. case.
Significantly however, Obama may have achieved a political resolution to this legal dispute, as the president has nominated two new NLRB appointees to replace those opposed by the Senate Republicans, namely union lawyer Richard Griffin and Deputy Labor Secretary Sharon Block, to be replaced by former AFL-CIO lawyer Nancy Schiffer and Kent Hirozawa. Obama has thereby (tactically) cleared the way for a confirmation vote next week and perhaps rendered the Supreme Court's appraisal moot.
Crucially, this was not the only controversy to preoccupy the Senate this week, as the appointment of Richard Cordray as director of the Consumer Financial Protection Bureau, was confirmed on Tuesday afternoon with a vote of 66 in favor and 34 opposed. Cordray's appointment too occurred during the questioned January recess of 2012. Moreover, a series of compromises are to proceed this week, as it is reported that Senate Republicans will allow votes to proceed for President Obama's top choices to run the Labor Department, Environmental Protection Agency, and Export-Import Bank of the United States.
Senate Majority Leader Harry Reid [D-Nev] said "I think we get what we want, they get what they want. Not a bad deal."
Please visit our past discussions on recess appointments for a history of the arguments that preceded this latest compromise.
Yesterday, Richard Cordray appeared before the Senate Banking Committee to present the Bureau of Consumer Financial Protection's semiannual report. His plans to appear before the House Financial Services Committee today ran into a roadblock--House Financial Services Committee Chairman Jeb Hensarling told him not to come. The letter of dis-invitation is premised on the fact that Mr. Cordray's status at the CFPB is under a legal cloud. That cloud is so big that not being permitted to testify is the least of Cordray's problems.
The Federalist Society has a new blog called "Executive Branch Review." Interesting early posts include Peggy Little on the CFPB and Allison Somin on EEOC's use of disparate impact theory to challenge employers' use of criminal background checks. We've certainly spoken out on the latter.
The Bureau of Consumer Financial Protection released an expanded consumer complaint database today. It contains more than 90,000 complaints made to the Bureau about credit cards, mortgages, bank accounts and services, student loans, and other consumer loans. The database includes basic information such as the affected product (mortgage, bank account, etc.), the issue (for example, "problems caused by my funds being low," loan modification), the name of the financial institution, and the disposition of the complaint. These complaints are not verified by the Bureau, and there is no way for a database user to assess whether the complaints have merit.
The Bureau, nevertheless, treats the list of complaints as if it is a key data set for understanding the financial markets and "support[ing] innovation in the consumer finance space." It has created a handful of charts and graphs based on the data and encourages members of the public to do the same. For example, the Bureau created a bar graph to show the top ten companies by number of complaints received. As a note at the bottom of the chart indicates, the chart is meaningless because "The data has not been normalized . . .companies with more customers could be expected to have more complaints." The release of unfiltered complaint data by company is misleading and indicative of an approach to regulation that is rooted in sensationalism, not careful analysis.
Last week, at her first Senate Banking Committee Hearing, Senator Elizabeth Warren excoriated regulators for entering into settlements with big banks rather than bringing them to trial. Also last week, Ms. Warren called for a vote to confirm Richard Cordray as director of the Consumer Financial Protection Bureau, a role in which he is already serving by virtue of a recess appointment of questionable legality.
Setting aside the senator's odd emphasis on trials as the only means to punish banks, the juxtaposition of these two events is interesting. On the one hand, Ms. Warren clearly relishes her new oversight role. On the other hand, she is insisting on the enshrinement of a regulator over whom she will not be able to exert effective oversight. If Mr. Cordray doesn't embrace the litigate-because-it-looks-tough approach--and so far he too has entered into settlements with big banks--there will be little she can do to hold him accountable besides public shaming. Under the institutional design blessed by Ms. Warren, the CFPB director has a free hand to do whatever he wants to do, even over the objections of members of Congress, the president, and the American people.
As Ted Frank pointed out earlier, today's decision by the D.C. Circuit Court of Appeals in Noel Canning v. National Labor Relations Board has far-reaching implications. The court, in the process of vacating a decision of the NLRB, found that the recess appointments of three of the NLRB's members were invalid. The NLRB's chairman issued a statement explaining that the order applies only to the particular case and expressing an intent to move forward with the NLRB's other matters. Despite his pledge to continue business as usual, the case has important implications for the full range of actions by the NLRB and the Consumer Financial Protection Bureau. Richard Cordray, the CFPB's director was recess appointed on the same day--January 4, 2012--and in the same manner as the three NLRB appointees. The Senate did not consent to Mr. Cordray's appointment and, in fact, many Senators voiced strong concern that, once in the job, the director would be unaccountable to anyone. Particularly because Dodd-Frank placed an extraordinary amount of power in the CFPB director, today's decision also calls into question the validity of the CFPB's actions. Neither the NLRB nor the CFPB should assume it is business as usual.
Professors Peter Rutledge and Christopher Drahozal in SSRN via Sovern:
This paper contributes to an ongoing debate, afoot in academic, legal and policy circles, over the future of consumer arbitration. Utilizing a newly available database of credit card agreements, the article offers an in-depth examination of dispute resolution practices within the credit card industry. In some respects, the data cast doubt on the conventional wisdom about the pervasiveness of arbitration clauses in consumer contracts and the presence of unfair terms. For example, the vast majority of credit card issuers do not utilize arbitration clauses, and by the end of 2010, the majority of credit card debt was not subject to such an agreement. Likewise, while the use of class waivers is widespread in arbitration clauses, most clauses lack the sorts of unfair procedural terms for which arbitration is often criticized. The upshot of these and other findings is that consumers, in some respects, have more choice in their contracts than the literature suggests. Our work also responds to the suggestions of some scholars that businesses favor arbitration clauses in their consumer contracts but not their business-to-business agreements. On the contrary, our research suggests that the difference may not be as dramatic as previous research suggests. These results hold important implications for ongoing policy debates, including the work of the newly minted and controversial Consumer Financial Protection Bureau ("CFPB"). The CFPB has been charged with studying and, if appropriate, regulating the use of arbitration clauses in credit card agreements. Our findings signal a note of caution and suggest that a blanket prohibition on the use of arbitration clauses would be difficult to defend under principles of administrative law.
Related. I'm somehow not surprised to learn that the Eisenberg/Miller/Sherwin paper on arbitration overstated its results. Remarkably, when Eisenberg errs, he consistently errs on the side of trial attorneys. But surely that's just a coincidence.
Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy
The Consumer Financial Protection Bureau (CFPB) was instituted by the Dodd-Frank Act in 2010 and has engendered concerns about whether it will be able to maintain its independence as a regulatory agency. As Manhattan Institute's director of the Center for Legal Policy Jim Copland has described previously, the CFPB - unlike most federal agencies - lacks Congressional oversight and is only accountable to the President. The CFPB faced further scrutiny after President Obama's controversial recess appointment of Richard Cordray to be its head.
Concerns about the CFPB's independence have increased in recent days after Patrick McHenry, a North Carolina Republican member of the House of Representatives, sent a letter to Cordray inquiring about the relationship between CFPB officials and the White House:
In a letter sent to consumer chief Richard Cordray Monday, Rep. McHenry asked for details on how the agency's top staffers interact with the White House, and why. "Although employees of other independent agencies meet with White House staff members and such meetings are not per se inappropriate, the frequency of the CFPB's visits and the CFPB's coordinated public events with the White House could suggest that the Bureau's regulatory actions are indirectly shaped by these interactions," the Congressman wrote.
A few examples, though circumstantial, raise eyebrows. In June Mr. Cordray briefed reporters in the White House--alongside presidential spokesman Jay Carney and Secretary of Education Arne Duncan--on student loans and rising tuition. President Obama has made his attempts to ease student debt burdens a centerpiece of his campaign. Public records show Mr. Cordray has also held calls with White House Deputy Chief of Staff for Policy, Nancy-Ann DeParle, and attended a "White House Cabinet Affairs Chief of Staff Lunch," though it's unclear why.
McHenry's letter itself may not lead to any disclosure regarding the CFPB's independence, but the relationship between the administration and the CFPB will be likely to face continued scrutiny.
C. Boyden Gray spoke out nearly two years ago against the constitutionality of Dodd-Frank, and is now counsel of record (along with CEI) in a lawsuit putting those ideas into play, along with a challenge to the recess appointment of Richard Cordray. The lawsuit focuses on Titles 1 and 10, rather than the entire statute. Kudos to the State National Bank of Big Spring for sticking its neck along the line against an administration known to retaliate. [Gray/Purcell @ WSJ; more at CEI; American Banker; Powerline; WSJ ($); Bloomberg (with an ironic quote from Public Citizen attorney expressing skepticism over standing argument); Compliance Week; The Hill via Zieve; Reuters]
Paging Todd Zywicki. CFPB director Richard Cordray complains that 9% of bank customers pay 84% of overdraft fees, with the implication that paternalistic regulation is needed. Of course, as Shannon Phillips points out (via Funnell), what this statistic really reflects is that the vast majority of account holders use their accounts responsibly: if someone in that 9% were to do a better job of balancing their checkbook, they'd move into the 91%. But CPFB regulation (still in a notice and comment procedure, with comments due by June 29), would likely punish the 91% to protect the 9% from themselves. Except that without the overdraft fees, banks will find it unprofitable to serve these customers in the first place, and will instead charge monthly fees that effectively preclude any access to the banking system for both the responsible and irresponsible lower middle class. But at least regulators can feel better that they stopped overdraft fees.
Similarly, Jeff Sovern complains that many consumers and students are cluelessly engaging in complex financial transactions without understanding basic concepts like variable and fixed interest rates. The proposed solution—required use of mortgage counselors—would make mortgages more expensive for everyone, even those responsible citizens who are capable of representing their own interests and making their own choices without the needless additional overhead. Why not let consumers choose for themselves whether they need to hire a financial advisor?
Part of the problem in the mortgage context, I would strongly suspect, is the degree to which meaningful disclosures are buried in meaningless defensive disclosures banks engage in upon risk of class action liability. To take a related example, the pending Supreme Court case of First American Financial Corp. v. Edwards involves a RESPA class action alleging a technical violation of the law without any financial injury; while this is not a disclosure case, it shows the degree to which banks face litigation exposure by entrepreneurial rent-seeking trial lawyers without regard to whether the alleged transaction problem actually harms consumers. The disclosure regime has grown to the extent that it has become counterproductive: even brilliant experienced federal judges find it unprofitable to read the disclosures. Where CFPB could be useful is to create a clear-cut disclosure regime—a page of disclosures—together with preemption precluding lawsuits over the lack of the other 100 pages of disclosures. Earlier.
Jim Copland
Published on 01/18/12
By now, others have well documented the extraordinary nature of President Obama's appointments to fill the National Labor Relations Board and head the new Consumer Financial Protection Bureau -- purportedly exercising authority under the Constitution's Recess Appointments Clause, but almost certainly acting outside the constitutional provision's scope.
But beyond the constitutional issues, the political and policy implications of the president's action has drawn insufficient attention. The president has, in an election year and without congressional oversight, assumed sweeping and virtually unilateral authority to make policy that will generate windfalls for his two most financially crucial campaign constituencies -- organized labor and the plaintiffs' bar. Just how important are trial lawyers and labor unions to the president's election? In the 2008 election, lawyers and law firms funneled over $45 million into Obama's campaign, more than twice as much as any other industry.
The Service Employees International Union spent over $31 million in independent expenditures to aid the president's campaign -- again, more than twice as much as any other outside group.
The organized plaintiffs' bar and various labor unions constituted a staggering 19 of the top 20 political-action committees' spending on behalf of Democrats in the 2008 campaign, doling out between $1.7 million and $3.2 million each.
Since assuming office, Obama has worked to repay these campaign benefactors. The auto-company bailouts propped up unions by undercutting the clear legal rights of secured debt holders, and much of the "stimulus" spending was designed to protect public-sector unions by shielding them from budget cuts made by strapped state and local governments.
Trial lawyers avoided any serious tort reform in Obamacare, and they got legislation that gutted statutes of limitation for employment-discrimination lawsuits and expanded the scope of private litigation against government contractors.
That said, Congress has frustrated the president's most ambitious plans to help labor and lawyers. Even with large majorities in both houses of Congress, Obama was unable to muster support for the Employee Free Choice Act -- the deceptively labeled "card check" bill that would have allowed unions to form without secret-ballot elections and empowered federal bureaucrats to make sweeping changes to private labor contracts.
Similarly, the most sweeping reform bills on the tort bar's wish list also never came to pass, including legislation designed to make it easier to file baseless claims in federal court; a bill to expand securities litigation by allowing lawyers to sue customers and suppliers for companies' alleged frauds; and a trial-lawyer tax break that would have allowed plaintiffs' lawyers to treat contingency-fee loans as immediate expenses.
With his recess appointments, however, Obama is now in a position to avoid such congressional obstacles and help unions and lawyers through fiat. With three of the five NLRB members slipped into power in the dead of night -- and two of these three were nominated only two days before the Senate's Christmas break, hardly stalled by congressional inaction -- the president's labor-friendly cronies will be well-positioned to make rulings advantageous to unions.
Expect to see more along the lines of the Obama NLRB's extraordinary effort to thwart a Boeing plant's construction in right-to-work South Carolina. As CFPB director, Cordray will be positioned to green-light state tort litigation previously blocked by federal regulation and to "delegate" enforcement to state attorneys general, who in turn will farm out lawsuits to the plaintiffs' bar.
Cordray himself leveraged the Ohio state attorney general's office into a powerful campaign fundraising mechanism, when his election pulled in over $800,000 from out-of-state plaintiffs' law firms and he then hired many of those same firms to sue on the state's behalf.
The president's NLRB and CFPB appointments should be understood not only as an affront to the Constitution's system of checks and balances, but also as an aggressive move to energize his deepest-pocket electoral supporters. Sadly, American law and policy will be the likely casualty of this Chicago-style campaign gambit.
Jason Mazzone
Gerald Baylin Professor of Law, Brooklyn Law School
I appreciate Andrew Grossman's thoughtful comments on my remarks on Recess Appointments and National Security. Yet I searched those comments in vain for a plausible solution to the problem I raised: unless the President can make use of the Recess Appointments Clause, the pro-forma Senate, in which Senators are dispersed and no business is conducted, will leave the country unable to respond effectively to security problems or other national crises.
The sole specific suggestion that Andrew (if I may) offers is a pocket-veto-like scenario, with no basis in the text of the Constitution, in which the Senate would transmit appropriate messages to the President. In other words, rather than expeditiously appoint the people to distribute the gasmasks, the iodine pills, and the vaccines, the President should wait for the Senate to send word that when it said it was in pro-forma session it was only kidding. This is not a basis on which the Republic is secured.
In place of confronting the security origins of the Recess Appointments Clause and the security implications of his vision of a permanently-in-session Senate, Andrew returns the interpretive task to ordinary politics. His Constitution is one for the vast bureaucratic state in which constitutional interpretation should focus on the selection and control of peacetime functionaries. My Constitution is one that begins instead with the first duty of government, security. For without well-functioning mechanisms to ensure the security of the state and of the people, there is little point talking about which bureaucrat will head the CFPB or serve on the NLRB.
Andrew's peacetime Recess Clause is a dangerous creature for another reason. The failure to take account of security concerns risks generating constitutional rules and theories that are impractical when emergencies do arise, lending unintended legitimacy to government officials who ask to suspend normal constitutional constraints in response to security risks.
Andrew asks two questions. The first, whether the President's power is limited to vacancies that arise during a recess, is one many others have discussed and I will leave for another day. The second, in which Andrew proposes his own hypothetical security scenario, leads me to a broader issue, one that has received less attention and with which it is useful to end.
Given that there are plausible arguments on both sides about the constitutionality of recess appointments during pro-forma sessions, we are left with a puzzle: who decides whether the Senate was in fact in session? Andrew's arguments assign that decision at various points to the Senate, the House, the courts, and even--with Andrew's invocation of the payroll tax cut extension--President Obama himself. (I suspect the last of these is accidental.)
In instances such as the recent events on which this debate is focused, I would defer to the President on the question of whether the Senate is in session. The reason is simple. While government officials deciding upon the scope of their own powers present some obvious dangers, the Recess Appointments Clause contains its own check on executive abuses: commissions that the President grants pursuant to his recess power expire at the end of the next senatorial session. The Clause therefore protects to a large degree the interests of the Senate.
There is a further lesson. The expiration date underscores the temporary, emergency nature of the Recess Appointments Clause. This, as I have urged, is the essential feature that any account of the President's recess power must confront.
Andrew M. Grossman
Heritage Foundation Visiting Legal Fellow
Professor Mazzone's clever argument that, due to national-security interests, the President has the power to decree that Congress is in recess and make such appointments as he wishes explains too much, but unfortunately not the two things that matter: the constitutional text and structure.
Let's start with the text. Article II, section 2, provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States." The subsequent clause provides that the "President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Yes, as Prof. Mazzone observes, these provisions in the same section as clause declaring the President "commander in chief"; for what it's worth, so are the provisions authorizing the President to seek written opinions of his cabinet and to "grant reprieves and pardons." Proximity only proves so much.
The challenge of interpreting the Constitution's "odd clauses" is to give them meaning consistent with text and history, without rendering any a nullity. Prof. Mazzone, as well as the Obama Administration, run aground on a few well-marked shoals:
First, let's start with the big-picture view: if Congress can pass a bill, it must be in session. Congress did, in fact, pass a bill during one of the "pro-forma sessions" that the President now claims may actually be a recess. But guess who signed that bill into law . . . . (And once before, in August.) For purposes of passing legislation that he supported, the President accepted pro-forma sessions as what they purport to be: active sessions. Either that, or he simply deferred to Congress's view on the matter.
Second is the requirement in Article I that neither chamber shall, "without the consent of the other, adjourn for more than three days." The House craftily wielded this provision to deny the Senate permission to adjourn. But the President's action, if upheld, would render it a nullity--the Senate could adjourn whenever it likes. Up until now, pro-forma sessions had always been considered sufficient to satisfy this requirement, as well as to satisfy the Twentieth Amendment's mandate that Congress assemble each year on January 3.
Third is the inconvenient case of the "pocket veto." Although a bill passed by Congress but not signed by the President becomes law "within ten days (Sundays excepted) after it shall have been presented to him," that same bill is regarded as vetoed when "the Congress by their adjournment prevent its return." Does a pro-forma session prevent a President from exercising a pocket veto? Yes, most certainly, so long as Congress made arrangements to receive messages from the President. (Wouldn't a parallel requirement go a long way toward satisfying Prof. Mazzone's national-security concerns?)
Fourth, what about Congress's power to "determine the rules of its proceedings"? Typically, the other branches honor its determinations and judgments as to its own actions. For example, when Congress certifies that a particular bill has been enrolled, the courts will presume that Congress observed the requisite procedures in passing it. To be sure, this power isn't absolute--Congress couldn't, for example, originate a tax bill in the Senate--but this is not a circumstance where Congress attempts to act in a manner plainly opposed to constitutional mandate.
Prof. Mazzone's suggestion that the Recess Appointments Clause must be construed broadly in light of the President's responsibility for national security does not answer these points. Nor does it account for the existence of that provision of Article II, section 3, which provides that the President may adjourn the House and Senate "to such time as he shall think proper"--a power that no President has exercised due to its enormous political costs outside the unusual type of crisis context that Prof. Mazzone conjures up. (Then again, others differ in their evaluation of the political costs.)
But let me conclude with two questions for Prof. Mazzone. First, is your reading of the Recess Appointments Clause limited, as some say the text requires and as your rationale would seem to imply, to vacancies that arise during a recess? And second, let's modify the hypothetical: the terrorists attack when every single member of Congress is in town, but partisan discord is such that the Senate, meeting six days each week, is unable to confirm a single nominee over a period of months. In that case, can the President cite national-security needs and make a recess appointment late on a Saturday night, when not even the C-Span cameras are stirring? And please no cop-outs that it's non-justiciable, because I don't buy it.
Brooklyn Law professor Jason Mazzone and Heritage Foundation visiting legal fellow Andrew Grossman debate the constitutionality of President Obama's recess appointment of CFPB director Richard Cordray and three members of the NLRB.
Professor Mazzone's first comment articulates a unique national security argument in defense of the President's recess appointment authority. The featured discussion promises to be lively and thoughtful; please check back throughout the week as the discussion continues.
