Obama vs. the Constitution

Unbelievable as it may sound, Obama was once a constitutional law professor. So he should be familiar with Article II, Section 2 of the U.S. Constitution, which states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Officers of the United States." The same section goes on to say that the President can only appoint "inferior Officers" without the advice and consent of the Senate if Congress explicitly permits it by law.

In the case of the director of the newly-created Consumer Financial Protection Bureau, the law does not provide an exception for the Senate confirmation process. In fact, the very "financial reform" legislation that created it in July of this year also specifically declared that its director had to be appointed with the advice and consent of the Senate.

So, what do you do if you're President Obama and you're looking for someone to fill the position of Director of the Consumer Financial Protection Bureau? First, you select the most partisan, radical, controversial person you can find -- a person that even liberal Senator Christopher Dodd thinks may not be confirmable in a Senate with 59 Democrats. That person would be Elizabeth Warren, who has stated that she thinks her job is to "level the playing field" in the financial sector by dictating the terms and recipients of mortgages and credit cards extended by banks and financial institutions, completely apart from the authority of regulators responsible to maintain the financial soundness of those institutions. Second, you appoint her without the advice and consent of the Senate by changing her technical title from "Director" to "Special Advisor to the Treasury Secretary." Of course, she will report directly to the President and will have unfettered control over the formation and policy of the bureau, so she is in actuality directing it. But with luck the public won't know and the Senate won't make much of a fuss. And after all, the bureau only has a budget of up to $650 million, little Congressional oversight, and tremendous power to make rules governing a huge sector of our economy.

This move was bit much even for The Washington Post, hardly a mouthpiece of right-wing propaganda. In their editorial, they described Warren as an "ideologically contentious" progressive activist who "can be simplistic and hyperbolic." They also questioned whether Obama was within his constitutional rights (putting it charitably). The Wall Street Journal's editorial had even stronger things to say:

"We have here another end-run around Constitutional niceties so Team Obama can invest huge authority in an unelected official who is unable to withstand a public vetting. So a bureau inside an agency (the Fed) that it doesn't report to, with a budget not subject to Congressional control, now gets a leader not subject to Senate confirmation. If Dick Cheney had tried this, he'd have been accused of staging a coup."

Obama was right back in 2008 when he claimed he would be a different kind of politician. Of course, we were all thinking George Washington, not Hugo Chavez....