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Following up on his earlier statement about the impact of the Supreme Court’s decision in NLRB v. Noel Canning on Richard Cordray’s actions taken prior to his July 16, 2013 confirmation by the Senate as CFPB Director, Republican Congressman Jeb Hensarling has sent a letter to Mr. Cordray in which he asserts that the decision raises questions about the validity of those actions and seeks “a complete and proper accounting of the CFPB’s exposure to legal challenges.” … Continue Reading

The U.S. Supreme Court today issued a decision in NLRB v. Noel Canning in which it held that President Obama’s January 2012 recess appointments to the National Labor Relations Board were invalid.

The NLRB recess appointments were made on January 4, the day after a new session of Congress had begun with a pro forma January 3 session and two days before another pro forma session was held on January 6. … Continue Reading

The U.S. Supreme Court agreed today to review the D.C. Circuit’s decision in Noel Canning v. NLRB invalidating President Obama’s January 4, 2012 appointment of three NLRB members.  Because Richard Cordray was appointed CFPB Director on the same day and through the same assertion of “recess” appointment authority as the NLRB members at issue in Noel Canning, the Supreme Court’s ultimate ruling will effectively determine the validity of Mr.… Continue Reading

The briefing on the NLRB’s petition for certiorari in Noel Canning was completed yesterday, with the filing by the NLRB of a brief replying to the respondent’s brief filed on May 23.

The entry “DISTRIBUTED for Conference of June 20, 2013” now appears on the Supreme Court’s docket.  (The court’s standard procedure is to announce the results of its Thursday conferences on the following Monday at 10 am.… Continue Reading

We have been following very closely developments in NLRB v. Noel Canning, the case seeking Supreme Court review of the D.C. Circuit Court’s judgment invalidating President Obama’s January 4, 2012 appointment of several NLRB members. This case will likely determine the fate of Richard Cordray, who was appointed as Director of the CFPB on the same day and through the same assertion of “recess” appointment authority as the NLRB members in Noel Canning.… Continue Reading

Senate Republican Leader Mitch McConnell and his 44 Senate Republican colleagues have filed an amicus brief urging the U.S. Supreme Court to grant certiorari in NLRB v. Noel Canning. Indicating that the Republican Senators have “an unparalleled interest in safeguarding the chamber’s constitutionally prescribed role in the appointments process, which the Executive here sought to circumvent,” the brief argues that the court should not limit its review to the questions presented in the NLRB’s certiorari petition.  … Continue Reading

We recently reported that counsel for the respondent in NLRB v. Noel Canning planned to make a filing advising the U.S. Supreme Court that the respondent did not oppose the NLRB’s petition for certiorari. 

That filing occurred on May 23, with respondent filing a brief stating that it “does not oppose certiorari because this case presents a constitutional question of extreme importance.… Continue Reading

The dark cloud that has been hanging over CFPB Director Richard Cordray’s recess appointment just got darker.  In a 2-1 decision in NLRB v. New Vista Nursing and Rehabilitation, the U.S. Court of Appeals for the Third Circuit ruled today that, under the U.S. Constitution’s Recess Appointments Clause (RAC), the President may only make recess appointments during an intersession recess. … Continue Reading

“Can we duck the [recess appointments] issue?”  That question was asked yesterday by one of the members of the Third Circuit three-judge panel hearing oral argument on the National Labor Relation Board’s application to enforce its order in NLRB v. New Vista Nursing.
New Vista, like the Noel Canning v.… Continue Reading

Much attention has been devoted to what the D.C. Circuit’s Canning decision could mean for the CFPB’s rulemaking, supervisory and enforcement authority.  Now, a Congressman is questioning the decision’s implications for the CFPB’s funding from the Fed.  

In a letter to Fed Chair Ben Bernake dated March 8, Republican Congressman Jeb Hensarling, who chairs the House Financial Services Committee, asked for clarification “regarding the transfer of funds to the [CFPB] following the recent [Canning decision].”   … Continue Reading