Although there has been much discussion during the past week as to the legality of President Obama’s appointment of Richard Cordray as the first Director of the CFPB, there has been little discussion of the President’s appointment at the same time of three individuals to fill vacancies on the National Labor Relations Board (NLRB). Yet it is those latter appointments that may determine the legality of Cordray’s appointment.
That results from the fact that it is more likely that the NLRB (as opposed to Director Cordray) will soon take an official act that will give standing to someone to challenge the appointments in court. If a court determines that the President’s appointments of the three persons to fill the vacancies on the NLRB Board was invalid because the Senate was not in recess, then the same would hold true for Cordray’s appointment. If the court were to hold that the appointments of the persons to the NLRB Board were valid, that would eliminate the “no vacancy” argument but would still leave objectors to Cordray’s appointment with two other arguments – namely, that there was no “vacancy” to fill because Cordray was the first person to fill the position and that Dodd-Frank Act requires confirmation by the Senate.