Cordray, NLRB Appointments in Supreme Court’s Hands (June 24, 2013)
The U.S. Supreme Court this morning decided to hear the case of National Labor Relations Board v. Noel Canning. Hanging in the balance is the legal validity not only of appointments made by President Barack Obama to fill NLRB vacancies, but the appointment of Richard Cordray to the Consumer Financial Protection Bureau (CFPB).
A ruling by the U.S. Court of Appeals for the D.C. Circuit in January nullified appointments made by President Obama to the NLRB, which raised questions about the validity of Richard Cordray’s appointment as director of the CFPB, who also was appointed on Jan. 4, 2012, during what the White House considered a congressional recess.
Though the case the Supreme Court will hear is specific to the NLRB appointments, its decision will affect the legality of Cordray’s appointment should the Supreme Court affirm the D.C. Circuit Court, according to Alan Kaplinsky, a partner with law firm Ballard Spahr LLP. “It’s automatic; there is no distinction between the way Cordray was appointed and the way the NLRB people were appointed,” he says. “The outcome of one will directly affect the outcome of the other.”
The CFPB declined to comment on the high court’s decision to hear the case.
When the appeals court nullified the NLRB appointments, Kaplinsky told Paybefore that “a huge cloud” hung over all official actions taken by Cordray, and that the validity of regulations issued or to be issued in the future was questionable.
In light of the Supreme Court’s decision this morning, Kaplinsky says, “the cloud just got darker. An affirmance of the D.C. Circuit Court opinion will throw many actions taken since Jan. 4, 2012, by the CFPB into a [state of confusion]. It will be chaotic.” Kaplinsky expects the case to be argued in October when the Supreme Court’s next term begins, and a decision will come by early 2014.