Court Ruling Jeopardizes Cordray's Recess Appointment

by devteam January 26th, 2013 | Share

The U.S. Court of Appeals for the District ofrnColumbia just ruled that three recess appointments made by President BarackrnObama last year are constitutionally invalid. rnThe Court ruled specifically on appointments made to the National LaborrnRelations Board (NLRB) during a Congressional recess last January but thernruling has implications for the recess appointment of Richard Cordray to bernDirector of the Consumer Financial Protection Bureau which was made on the samernday. </p

The Office of White House Counsel has not yetrnreacted to the decision but it is nearly certain they will appeal it to thernSupreme Court.  If allowed to stand thernAppeals Court ruling invalidates dozens of decisions made by the NLRB over thernlast year.  Cordray’s appointment isrnbeing challenged in a separate court case which could have similar implicationsrnfor the copious rulemaking done by CFPB under his directorship.</p

The NLRB appointment and that of Cordray were madernby the President during a Senate recess because Senate Republicans had blocked allrnfour appointments with the threat of filibusters.  The three NLRB nominees were blocked becausernthe minority party considered them too pro-union.  Republicans admitted that Cordray was wellrnqualified for his position but they were opposed to the existence of CFPB whichrnwas established by the Dodd-Frank Wall Street Reform Act.  </p

The Court said that recess appointments were intended to fill vacancies thatrnoccurred during congressional recesses rather than to circumvent senaternconfirmations.  “Considering therntext, history, and structure of the Constitution, these appointments wererninvalid from their inception,” the judges said.</p

Senate Republicansrnhad also contended that they were not in actual recess at the time.  Even though most members had dispersed torntheir home states for the Christmas/New Years holidays they had arranged forrnmembers who remained in the Washington area to gavel the otherwise emptyrnchamber to order each day precisely to thwart recess appointments.

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About the Author


Steven A Feinberg (@CPAsteve) of Appletree Business Services LLC, is a PASBA member accountant located in Londonderry, New Hampshire.

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