Sarah Binder, a historian of Congress at George Washington University and a senior fellow at the Brookings Institution, said in a blog post that she thinks it is probably a legal appointment.
“Although Republicans will likely challenge the appointment in court, it’s hard for me to see the Cordray appointment as more than an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB,” Binder said in a blog post. “The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation.”
She added that the White House also likely made the political calculation that there was more upside than downside for Democrats from the appointment, giving them another opportunity to position themselves as a friend of middle-class consumers and opposed to wealthy Wall Street banks.
“Certainly it fits the president’s electoral strategy of championing the rights of consumers as an advocate of the middle class and painting the GOP as a defender of dishonest financial lenders,” Binder continued.