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Sen. Jerry Moran has reintroduced a bill to overhaul the structure of the CFPB in the wake of a controversial court ruling last month.
February 1 -
The Competitive Enterprise Institute and the 60 Plus Association are urging the Senate to delay confirmation of Richard Cordray, director of the Consumer Financial Protection Bureau, until the implications of a recent federal court case are better understood.
January 30 -
A ruling by a federal appeals court last week that President Obama acted improperly in recess appointing members of the National Labor Relations Board may encourage Democrats to cut a deal on the structure of the Consumer Financial Protection Bureau.
January 28 -
A three-judge panel of the U.S. Court of Appeals ruled that President Obama did not have the authority a year ago when he filled three recess appointments to the NLRB the same day he appointed Richard Cordray to head the Consumer Financial Protection Bureau.
January 25
WASHINGTON — The Supreme Court has declined to hear a case against the National Labor Relations Board that calls into question the president's recess appointment authority.
The case is different from one the U.S. Court of Appeals ruled on last month, in which it said that the President overstepped his authority by making three recess appointments to the NLRB when the Senate was technically still in session.
As a result, the Supreme Court's decision not to hear the case may have little to no impact on what the courts ultimately decide about presidential recess appointments, including Consumer Financial Protection Bureau Director Richard Cordray, who was appointed at the same time as the NLRB members.
"I don't think there's a lot of significance attached to this Supreme Court order," said Alan Kaplinsky, a partner with Ballard Spahr. "This merely is reflective of the fact that they [Supreme Court judges] don't want to reach out to take a case that really is not ripe for the Supreme Court to review."
Other lawyers agreed.
"I don't think it adds or detracts to the core issue of the validity or the invalidity" of the recess appointments, said Leonard Chanin, a partner at Morrison & Foerster.
There are reportedly dozens of pending cases involving the NLRB that could ultimately challenge recess appointments.
But the one denied by the Supreme Court on Wednesday received some attention when a Connecticut nursing home manager, HealthBridge Management, filed a request to the Supreme Court to skip over a lower court appeals process and go straight to the high court.
After Healthbridge was ordered by a district court to comply with a NLRB order and reinstate workers on strike, Healthbridge filed a motion with the Supreme Court to temporarily delay the district court's order by questioning the recess appointments.
The Justices declined to hear the case without explanation.
While it's difficult to skip ahead to the Supreme Court, the Healthbridge case drew attention partly because of the company's lawyer, Paul Clement, who is a former U.S. Solicitor General. Even then, Healthbridge's lawyers knew it would be a rare feat, calling it "an extraordinary request prompted by extraordinary circumstances," in the motion to the Supreme Court.
Had the Justices permitted the request, the case could have catapulted past the Noel Canning vs. NLRB case, which received attention last month when the U.S. Court of Appeals for the D.C. Circuit said the recess appointments to the NLRB were unconstitutional. The ruling reinvigorated debate about Cordray's recess appointment since it occurred at the same time as the NLRB's appointments last January.
"This ruling makes clear that the President's alleged recess appointment of the CFPB director is unlawful or unconstitutional or both," said House Financial Services Committee Chairman Jeb Hensarling, in a statement last month. "It also clearly calls into question the legal validity of any and all actions undertaken by the CFPB since this appointment was made, adding even greater uncertainty to our still struggling economy."
While there are also other cases that challenge the legality of the recess appointments, the Canning case is the furthest along and is likely to be the one eventually heard by the Supreme Court.
The White House is expected to appeal the ruling on the Canning case to the Supreme Court, but the process could take months.
