Recently a government watchdog organization known as Judicial Watch obtained, via a Freedom of Information Act request, a large number of documents about Richard Cordray, President Obama’s choice as Director of the CFPB. Among the more than 200 documents disclosed was an internal CFPB e-mail entitled “Weekly Message: and dated February 6, 2012, in which Mr. Cordray acknowledged that there was some doubt about the validity of his recess appointment on January 4.
That acknowledgment, which downplays the likelihood of invalidity but recognizes the possibility, is a very minor part of a larger message to the CFPB staff, likening them to a large but unified family that will work diligently together to protect fellow citizens. “There is,” Cordray wrote, a chance (a minor chance in my view, though everyone is entitled to his or her own opinion) that the appointment would be invalidated by a court. If it were, it would be nice to have a safety net in place to minimize any disruption that would cause – though it is not clear how to achieve that. Despite this possibility, and as I have testified at congressional hearings, it is hard to see how we can do anything other than concentrate on doing our jobs as well as we can – including me especially.”
Denying any undue significance to the length of his term (two years) as a recess appointee, Cordray noted that even a full term was only five years.
To the extent there is a certain end-point to the horizon, that fact is not unique to a recess appointment. But (and it is inevitable that there was going to be a “but”), the fact that this appointment is for two years (and in some conceivable circumstances it could be shorter) does matter in one important respect. . . .It is short enough to make every day precious. This time period should give to each one of us, and not only me, a fierce urgency to accomplish the work we are doing together. . . . [E]very day we are here we have the opportunity to protect our fellow citizens. Every day we have a chance to figure out and fix the many problems and concerns that we see in the consumer financial markets. And in these early days, that goes doubly, triply, maybe octuply — because what we do right now will set the direction for the Bureau in the future. . . . Let’s Get Cracking!
Clearly, Mr. Cordray wishes to cram a lot into what will be at best a two-year appointment.
In sum, one should not accord much significance to Cordray’s acknowledgment that his recess appointment could possibly be vulnerable. It is not an admission of any kind, nor is it an expression of belief or informed legal opinion that invalidation of his appointment is likely. To the contrary, it is merely an answer to the question whether it makes any difference to his work that his was a recess appointment. The e-mail does, moreover, portray Mr. Cordray in a positive light – as a realist and as a public servant committed to doing the best he can at the Bureau for however long he may there. Most likely that is the reason it was released as part of the response to the FOIA request.
Prior blogs on the validity of Mr. Cordray’s recess appointment can be found here and here.