On Wednesday afternoon, the current President of the United States did what may be described as an unconstitutional end run around the United States Senate by “recess appointing” three nominees to the National Labor Relations Board (as well as to the Consumer Financial Protection Bureau) even though the Senate is not in recess.

Notwithstanding the CFPB appointment, Obama’s seating of the three NLRB appointees—two of whom are  ardently pro-union and demonstrate Obama’s ongoing willingness to continue his union-backed carpet-bombing campaign on millions of job creators—drew immediate fire U.S. House Education and the Workforce Committee Chairman John Kline (R-MN), who stated:

“President Obama’s stunning move to install not one but three new members to the National Labor Relations Board without a hearing or a vote in the United States Senate is an unprecedented abuse of power and an affront to the will of the American people.

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On Wednesday afternoon, the current President of the United States did what may be described as an unconstitutional end run around the United States Senate by “recess appointing” three nominees to the National Labor Relations Board (as well as to the Consumer Financial Protection Bureau) even though the Senate is not in recess.

Notwithstanding the CFPB appointment, Obama’s seating of the three NLRB appointees—two of whom are  ardently pro-union and demonstrate Obama’s ongoing willingness to continue his union-backed carpet-bombing campaign on millions of job creators—drew immediate fire U.S. House Education and the Workforce Committee Chairman John Kline (R-MN), who stated:

“President Obama’s stunning move to install not one but three new members to the National Labor Relations Board without a hearing or a vote in the United States Senate is an unprecedented abuse of power and an affront to the will of the American people.

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The Who? in the title reflects the fact that Elizabeth Warren is more or less unknown outside of Activist Left circles, where she is generally considered to be a secular saint*. Warren would also be the first head of the “Consumer Financial Protection Bureau” (CFPB) mandated by Dodd-Frank, except for the minor detail that the last thing we need right now is yet another regulatory agency seemingly designed to put the brakes on economic development.   Anyway, the short version of the current brouhaha: Senate Republicans won’t let Warren’s nomination come to a vote; House Republicans have no qualms whatsoever about denying the President the ability to make recess appointments for the rest of the 112th Congress; and Democrats, having conveniently forgotten that they did the exact same thing to President George Bush, are upset and wounded over the entire thing. And, oh yes, progressives are particularly upset and wounded that a Republican** called her a liar to her face when she tried to play I’m-too-important-for-this-hearing:

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The Who? in the title reflects the fact that Elizabeth Warren is more or less unknown outside of Activist Left circles, where she is generally considered to be a secular saint*. Warren would also be the first head of the “Consumer Financial Protection Bureau” (CFPB) mandated by Dodd-Frank, except for the minor detail that the last thing we need right now is yet another regulatory agency seemingly designed to put the brakes on economic development.   Anyway, the short version of the current brouhaha: Senate Republicans won’t let Warren’s nomination come to a vote; House Republicans have no qualms whatsoever about denying the President the ability to make recess appointments for the rest of the 112th Congress; and Democrats, having conveniently forgotten that they did the exact same thing to President George Bush, are upset and wounded over the entire thing. And, oh yes, progressives are particularly upset and wounded that a Republican** called her a liar to her face when she tried to play I’m-too-important-for-this-hearing:

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Criticism of President Obama’s appointment of Elizabeth Warren to oversee the establishment of the Consumer Financial Protection Bureau (CFPB) – the Dodd-Frank Act’s contribution to growing the federal bureaucracy – has focused on Obama’s end-run around the Senate confirmation process.  By making Warren the White House czar for the CFPB instead of the agency’s director, Obama allows her to “effectively run the agency” (quoting the New York Times) while skirting both the Constitution’s requirement that “officers” of the federal government be confirmed by the Senate and the troubling questions about Warren’s anti-business bent that would inevitably have been part of her Senate confirmation hearings.

While the President’s attempt to defeat the constitutional checks and balances provided by the confirmation process is troubling enough, Warren’s appointment as White House czar is undoubtedly also intended to defeat the checks and balances provided by Congressional oversight.  Such oversight typically involves testimony by Cabinet and sub-Cabinet officials before Congressional committees and the subpoenaing of agency documents.

In sharp contrast, the Obama White House has made it clear that its czars cannot be compelled to testify before Congress and will not be allowed to testify voluntarily.  Thus, Warren’s appointment guarantees that the powerful new CFPB will be largely exempt from the openness and transparency Obama promised for the entire government.  That exemption will come in particularly handy for Obama if the GOP takes controls of either house of Congress in November, giving Republicans oversight authority as the CFPB begins its mischief-making next year.

The late Senator Robert Byrd foresaw this problem in February 2009 when he wrote to Obama to express his concern about the President’s excessive use of czars, warning that czars

are not accountable for their actions to Congress, to cabinet officials, and to virtually anyone but the president.  They rarely testify before congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege.  In too many instances, [they] have been allowed to inhibit openness and transparency, and reduce accountability.

Under the terms of the Dodd-Frank Act, the Treasury Department, rather than a White House czar, should be running the CFPB until a director is named.  But Obama got around that requirement by giving Elizabeth Warren a dual appointment as a special adviser to Treasury Secretary Timothy Geithner.  While Congressional committees cannot compel Warren to testify in her capacity as an assistant to the President, Congress may argue that she can be so compelled in her capacity as a Geithner adviser.  But don’t get your hopes up since executive privilege provides the Obama Administration with counterarguments.

At the end of the day, Warren is likely to be as unaccountable as the President’s other czars, but with an added and dangerous twist.  Obama’s use of White House czars to exempt long-established, largely stable agencies from transparency and accountability has been dangerous enough.  But this latest attempt, aimed at shielding from accountability a brand new, poorly understood agency – one likely to be riddled with the mistakes and misjudgments found in any startup – is recklessly irresponsible.

Criticism of President Obama’s appointment of Elizabeth Warren to oversee the establishment of the Consumer Financial Protection Bureau (CFPB) – the Dodd-Frank Act’s contribution to growing the federal bureaucracy – has focused on Obama’s end-run around the Senate confirmation process.  By making Warren the White House czar for the CFPB instead of the agency’s director, Obama allows her to “effectively run the agency” (quoting the New York Times) while skirting both the Constitution’s requirement that “officers” of the federal government be confirmed by the Senate and the troubling questions about Warren’s anti-business bent that would inevitably have been part of her Senate confirmation hearings.

While the President’s attempt to defeat the constitutional checks and balances provided by the confirmation process is troubling enough, Warren’s appointment as White House czar is undoubtedly also intended to defeat the checks and balances provided by Congressional oversight.  Such oversight typically involves testimony by Cabinet and sub-Cabinet officials before Congressional committees and the subpoenaing of agency documents.

In sharp contrast, the Obama White House has made it clear that its czars cannot be compelled to testify before Congress and will not be allowed to testify voluntarily.  Thus, Warren’s appointment guarantees that the powerful new CFPB will be largely exempt from the openness and transparency Obama promised for the entire government.  That exemption will come in particularly handy for Obama if the GOP takes controls of either house of Congress in November, giving Republicans oversight authority as the CFPB begins its mischief-making next year.

The late Senator Robert Byrd foresaw this problem in February 2009 when he wrote to Obama to express his concern about the President’s excessive use of czars, warning that czars

are not accountable for their actions to Congress, to cabinet officials, and to virtually anyone but the president.  They rarely testify before congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege.  In too many instances, [they] have been allowed to inhibit openness and transparency, and reduce accountability.

Under the terms of the Dodd-Frank Act, the Treasury Department, rather than a White House czar, should be running the CFPB until a director is named.  But Obama got around that requirement by giving Elizabeth Warren a dual appointment as a special adviser to Treasury Secretary Timothy Geithner.  While Congressional committees cannot compel Warren to testify in her capacity as an assistant to the President, Congress may argue that she can be so compelled in her capacity as a Geithner adviser.  But don’t get your hopes up since executive privilege provides the Obama Administration with counterarguments.

At the end of the day, Warren is likely to be as unaccountable as the President’s other czars, but with an added and dangerous twist.  Obama’s use of White House czars to exempt long-established, largely stable agencies from transparency and accountability has been dangerous enough.  But this latest attempt, aimed at shielding from accountability a brand new, poorly understood agency – one likely to be riddled with the mistakes and misjudgments found in any startup – is recklessly irresponsible.

Last month I implied that one of the signs of DOOM in November would be an increased number of convoluted theories about how to ensure Democratic dominance. Ben Domenech over at The New Ledger has links to the latest one, which is apparently resting on the core assumption that two years of Democratic disillusionment with an administration that is excellent at betrayal, yet incompetent at actual policy- and agenda-setting can be instantly set aside by the appointment of Elizabeth Warren to the Consumer Financial Protection Bureau.

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Last month I implied that one of the signs of DOOM in November would be an increased number of convoluted theories about how to ensure Democratic dominance. Ben Domenech over at The New Ledger has links to the latest one, which is apparently resting on the core assumption that two years of Democratic disillusionment with an administration that is excellent at betrayal, yet incompetent at actual policy- and agenda-setting can be instantly set aside by the appointment of Elizabeth Warren to the Consumer Financial Protection Bureau.

Read More →