The U.S. Supreme Court agreed to review an appellate court case that invalidated several of President Obama’s recess appointments to the National Labor Relations Board.
While the case is not directly related to the president’s 2012 recess appointment of Richard Cordray to serve as director of the Consumer Financial Protection Bureau, the substantive legal issues correlate to similar arguments made in a separate court case involving Cordray’s recess appointment.
"Should the court invalidate the NLRB appointments, the potential impact on the CFPB would be monumental," said attorneys with Ballard Spahr in a news alert on the Supreme Court’s acceptance of the case. "This would call into question the validity of past CFPB actions, particularly any action involving the CFPB's exercise of authority that was newly created by the Dodd-Frank Act, and the CFPB's ability to act in the future."
The Canning v. NLRB decision became a point of contention for the CFPB as lawmakers in Congress used the potential invalidation of recess appointments as a bargaining chip in an attempt to reconstruct or reform the structure of the agency.
The decision was published by the U.S. Court of Appeals for the D.C. Circuit at a time when a similar challenge to Cordray’s appointment remained pending in another case.
Not long after the decision, several Republican Senators introduced "The Restoring the Constitutional Balance of Power Act of 2013."
The act tried to prohibit the CFPB from enforcing or implementing regulations without a constitutionally confirmed director in place.
The issue has left the consumer agency somewhat afloat, with parties on both sides left waiting for more certainty from the highest court.
With the Supreme Court granting review, the case and Cordray's recess appointment are set to capture the public's attention once again.