More than a year-and-a-half after President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the Consumer Financial Protection Bureau (“CFPB”), the CFPB finally has a “Director” – although the Director is not who many thought and hoped it would be (Elizabeth Warren), nor was the process of installing the Director in office the process contemplated by the authors of the Dodd-Frank Act, which says that “… the Director shall be appointed by the President, by and with the advice and consent of the Senate.” (Sec. 1011(b)(2)).
By the time the inaugural Director of the CFPB was installed, former Ohio Attorney General Richard Cordray was the nominee to head the fledgling bureau rather than Harvard Law Professor Elizabeth Warren, who is back in Massachusetts running for the United States Senate seat currently held by Senator Scott Brown (R-MA) who, ironically, was one of only three Republican senators who voted to approve the Dodd-Frank Act that created the CFPB. And the process followed was not through a vote in the Senate reflecting “the advice and consent of the Senate” provided for in the Dodd-Frank Act, but through the President announcing that he was appointing Cordray as Director using the authority that the United States Constitution (Article II, sec. 2, clause 3) confers upon the President “… to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session ...”
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