President Obama’s appointment of Richard Cordray is unacceptable because it violates both the letter and spirit of the Constitution.  The framers saw the dangers of power grabs by any one branch of government.  The President upended years of Senate practice and more than 90 years of Justice Department precedent by bypassing the Senate to appoint his nominee.  Overturning this sort of precedent is a major shift in the constitutional separation of powers.  If there’s a legal rationale, the White House needs to make it public.  The public’s business ought to be public, and President Obama promised to run the most transparent administration in history.  Along with other senators, I’ve asked him for a full accounting of the change in position.  Going back to 1921, attorneys general have stated – in advice to presidents, as well as legal filings in federal courts – that a recess appointment may only be made during an actual recess, one that is at least three days long.

The need for accountability also drives well-founded concerns about the bureau itself.  During debate on its creation, Senate Republicans sought more accountability.  This new bureau has the power to regulate a vast array of financial products and services.  Many of these powers were held previously by other federal agencies and subject to oversight because the agency budgets are controlled by Congress.  That’s not the case, at all, with the Consumer Financial Protection Bureau.  Funding for the bureau flows through the Federal Reserve.  The Fed operates independently from the President, as well as Congress, where Americans have a voice through their elected representatives.  What’s more, the Federal Reserve is prohibited in the Dodd-Frank law from intervening in the work of the bureau, making it unaccountable even to the Fed.  As a result, the Consumer Financial Protection Bureau is able to exercise massive regulatory authority without the checks and balances at the heart of our system of government.

So far, the President’s message is, trust us, we’ll do it right.  But the response of the legislative branch and the American people ought to be, trust but verify.  Starting with the President’s appointment and continuing with the set-up of any new bureau, accountability must be established.