There's a new definition of "cynicism" to be added to our dictionaries: "Obama non-appointment appointment of Elizabeth Warren to sort of head of CFPB." This is a new low even for this administration, which is descended from the infamous Chicago Democratic machine and should cause everyone concern for the lack of respect for law which is being exhibited.
I'm calling on the Senate to unanimously adopt a resolution making clear that, while there will be disagreement as to the nomination itself on the floor and in a vote, if the nomination is presented, all senators strongly condemn this disregard of their statutory authority, and demand that this appointment be retracted. I'm also calling on someone with constitutional standing to challenge the matter in court -- to file a federal lawsuit seeking a declaratory judgment as to the illegality of this appointment.
Professor Warren has been by far the leading proponent of the Consumer Financial Protection Bureau, which has recently been created by the Dodd-Frank financial reform bill. Many have speculated that she would be its first director, but others have expressed reservations about both her suitability in light of her hostility toward Wall Street and her confirmability in the Senate.
Whether Warren would be a good or a bad director is beside the point at this time. Reasonable people can and should disagree about her or any other nominee's suitability. That is why we have a Senate to pass on such nominations. President Obama clearly feels that she should be appointed but is unwilling or unable to support the nomination in the Senate, so he is trying to have it both ways. Rather than nominate her and openly advocate her candidacy through an up or down vote, he has named her a "special advisor" to Secy. Geithner and a "special assistant" to him, which do not require any Senate consideration, but will cause her, in her own words, to be involved in the establishment of the new agency and determination of its direction. "He has also asked me to take on the job to get the new CFPB started -- right now." A Yahoo Finance headline extrapolates from this to "Wall Street critic Warren to shape consumer watchdog."
Too clever by more than half! Calling her a "special advisor," "special assistant," or "head honcho" doesn't change the reality of her status as director. This is a blatant circumvention of the Dodd-Frank law's requirement of Senate confirmation and an affront to all Americans. The President has every right to nominate Prof. Warren to run the CFPB, but must be prepared to defend the nomination like any other. By asking her to get the agency started, he is asking that she function as director, but by hiding behind a title, is avoiding the procedure that goes with such designation. If he can't get the votes to have her confirmed, she has no business determining the agency's direction. Any actions which the CFPB takes in response to her direction will be severely tainted; a major problem for an agency which so many feel should not exist at all and which will undermine economic recovery.
When even Sen. Dodd is publicly expressing concern over the need to have in place a Senate-confirmed CFPB director, it is clear that there is reason for concern.
This is not the first instance where this president has circumvented (or shall I say ignored) legal requirements associated with key appointments. His recess appointment of Dr. Donald Berwick as head of Medicare and Medicaid and a key player in the rollout of ObamaCare uses the same template.
Apart from appointments, this administration is exhibiting a disturbing tendency to disregard legal obligations of all kinds when it suits their purpose. Six months ago, this writer decried the triumph of expedience in several areas.
It's time to make clear that this is not Chicago circa 1965 where the first Mayor Daley could freely impose his will, or today's Russia or Venezuela, and that the administration must take seriously its professed devotion to the rule of law.