WASHINGTON – The Competitive Enterprise Institute and the 60 Plus Association on Wednesday called on the Senate to delay the confirmation proceedings for Richard Cordray, director of the Consumer Financial Protection Bureau, until the implications of last week’s federal court ruling invalidating recess appointments – similar to Cordray’s – are better understood.

The U.S. Court of Appeals for the District of Columbia Circuit last week invalidated three recess appointments President Obama made to the National Labor Relations Board at the same time he appointed Cordray to the CFPB. The ruling does not explicitly apply to Cordray, but observers have warned that the decision casts a cloud of uncertainty over the Bureau and could bolster a pending lawsuit challenging the constitutionality of the CFPB and Cordray’s appointment.

“[W]e suggest that the Senate should withhold its confirmation of Mr. Cordray until the legal implications of the Noel Canning v. NLRB ruling become clear. This may well entail a temporary inconvenience in the Bureau’s work, but as the court noted in its decision, ‘[c]onvenience and efficiency are not the primary objectives – or the hallmarks – of democratic government,’” said the two groups in a letter to all senators dated Jan. 30.

Meantime, Republican senators continued to again mass against the CFPB nomination, with Kansas Republican Jerry Moran saying he and his Republican colleagues will not vote to confirm any nominee to head the fledgling agency until the Obama administration and Senate Democrats agree to their demands to change the structure of the agency to be headed by a multi-member board and to give Congress greater control over its budget.

Several other Republican senators, including Minority Leader Mitch McConnell of Kentucky, Mike Crapo of Idaho, the ranking Republican on the Senate Banking Committee, and Mike Johanns of Nebraska, have all expressed opposition to the Cordray nomination.

Cordray’s recess appointment as director of the CFPB expires at the end of this year. Last week President Obama nominated him to a full five-year term to head the new agency.

The CEI and 60 Plus are plaintiffs along with The State National Bank of Big Spring, Texas, and the states of Oklahoma, South Carolina and Michigan in a lawsuit filed against the CFPB. In their four-page letter, CEI and 60 Plus take issue with the structure of the CFPB. They go as far as calling it “unconstitutional.”

“This agency’s structure and power, coupled with Director Cordray’s pronouncements on using that power, have caused many people to take an extremely negative view of this agency. They regard it as a striking example of government power that is both massive and unaccountable,” they wrote.

The groups also contend the Bureau’s “head-in-the-sand attitude” toward the appeals court’s decision is the “height of administrative arrogance.”

“For these reasons, we ask that at this time you delay action on Mr. Cordray’s re-nomination,” they wrote.

 

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