It really doesn’t matter if Consumer Financial Protection Bureau Director Richard Cordray is confirmed or not by the U.S. Senate. Either way, everyone we speak to in lending and servicing is prepared for the final CFPB rules to take effect next January.

But for Republicans a recent decision by a court to rule the president’s recess appointments to the National Labor Relations Board ‘unconstitutional’ is the gift that keeps on giving.  

The same day that Senators heard from Richard Cordray, who is nominated by the president to resume his position as CFPB leader, Rep. Jeb Hensarling sent a letter to Fed Chairman Ben Bernanke, warning him that Cordray’s previous recess appointment could be invalidated, creating funding issues for the agency.

Hensarling wrote: “As you know, the Dodd-Frank Wall Street Reform and Consumer Protection Act authorizes the board to transfer funds to carry out the authorities of the CFPB only at the request of its director. Because it appears there is not presently a validly-appointed director of the CFPB, I question the circumstances under which the Board may lawfully fund the CFPB’s operations.” 

In other words, Republicans who have been trying to reshape the CFPB into an agency with a commission-like structure and more appropriations oversight feel NLRB gave them the leverage needed to dig in on the issue of Cordray’s re-appointment.

Their strategy is based on the belief that a similar court case challenging Cordray’s recess appointment could go the same way, invalidating his post and possibly the funding structure of the bureau.

You can access Hensarling’s full letter to Bernanke online.