I have read with interest Kate Berry's reporting on the judicial quagmire surrounding the legality of the rule-making authority of the Consumer Financial Protection Bureau.
As Berry correctly points out, the possibility exists that the courts will overturn some, if not all, of the recently-issued rules, citing concerns over whether the CFPB had the legal authority to issue such rules, especially the tsunami of rules that were issued in recent weeks. The quagmire explained by Berry should never have been allowed to happen in the first place.
Section 4102 (b) of the Dodd-Frank Wall Street Reform and Protection Act of 2009 (H.R. 4173) is very clear that the director of the CFPB "shall be appointed by the President, by and with the advice of the Senate, from among individuals who are citizens of the United States". Nowhere within Dodd-Frank is there language giving the President the authority to make a recess appointment, thus creating obvious legal grounds for calling the recess appointment of CFPB Director Richard Cordray into question.
If Cordray's appointment is in violation of Dodd-Frank, as it appears to be, the courts should do the right thing by nullifying his appointment, and mandating that the selection, and appointment, of the CFPB director go through the Senate’s advise and consent process, as Dodd-Frank stipulates. At the same time, the courts need to weigh whether regulations issued by a director who was improperly seated should remain in effect.
Barry Zadworny is senior vice president of Roma Bank in New Jersey.
Correction: An earlier version of the post stated the Dodd-Frank Act refers to the CFPB as the Consumer Financial Protection Agency. However, under the final version of the law, it is referred to as the Bureau of Consumer Financial Protection.