NLRB ruling not expected to have consumer bureau impact

A Supreme Court decision to curtail the president’s power to make recess appointments should have no impact on the Consumer Financial Protection Bureau (CFPB).

The high court unanimously ruled Thursday that a trio of recess appointments President Obama made to the National Labor Relations Board were invalid because the Senate did not consider itself in recess when the appointments were made.

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“For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Justice Stephen Breyer wrote in the court’s decision.

Obama recess appointed Richard Cordray to serve as head of the Consumer Financial Protection Bureau on the same day as the NLRB picks, and used the same rationale to justify the action.

Corday went on to lead the startup agency for roughly a year and a half, before a GOP blockade of his nomination finally dissolved amid a broader Senate fight over nominees. He was formally confirmed by the Senate as part of a deal to try and avert the “nuclear option,” a procedural rule change to filibuster rules that Democrats ultimately pushed through after a later set of nominees also stalled.

But while Thursday’s decision invalidates actions the NLRB took against a Pepsi-Cola distributor, its impact is not expected to spill over to actions the CFPB took while Cordray operated under his recess appointment.

That’s because one of the first steps Cordray took after being formally confirmed by the Senate and officially sworn in to the job was to reaffirm and re-ratify all actions he took during his recess appointment.

“I believe that the actions I took during the period I was serving as a recess appointee were legally authorized and entirely proper,” he said in a regulatory notice. “To avoid any possible uncertainty, however, I hereby affirm and ratify any and all actions I took during that period.”

Republicans have been critical of the agency since the outset, calling it unaccountable to lawmakers and too powerful. GOP lawmakers have repeatedly tried to pass legislation reworking the agency to bring it more under the control of lawmakers and fellow regulators, but Democrats and the White House have opposed all efforts.

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