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Sen. Johanns: Court ruling could render NLRB, CFPB actions ‘void’

Last Friday, a federal appeals court ruled that three Obama appointments to the NLRB were unconstitutional because the Senate was in session when they were made.

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The White House argued that the Senate was in recess at the time of the appointments, but GOP lawmakers and the U.S. Chamber cited pro forma sessions being held and argued that made Obama’s appointments unconstitutional.

The court ruling could also call into question the appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Obama named Cordray to that post the same day as the NLRB appointments, and Cordray’s placement is being challenged in a separate lawsuit.

Johanns on Monday said the court decision could well invalidate any recent moves by the NLRB and CFPB, claiming that the unconstitutional appointments could render “all of their actions void.”

“That could very well happen, I’ve asked for a [Government Accountability Office] investigation of that,” Johanns said. “If they aren’t there lawfully, they can’t, they can’t enter lawful orders or rulings,” he explained.

Republicans had blocked Cordray’s selection over concerns involving the consumer protection bureau, calling for a set of reforms including having the agency run by a panel instead of a lone chairman.

Johanns said that the GOP opposition was not to Cordray but over the agency’s powers and structure.

“Our position was reasonable from the start. We just wanted to sit down with the president or whoever and try to work out some problems with this new federal agency,” he said.

Obama last week re-nominated Cordray to continue to lead the CFPB when his current term expires at year’s end, setting up a renewed fight with Senate Republicans over the agency.

Johanns said he did not know what steps the White House would take next, but said he expected the administration was weighing whether or not to challenge the federal court ruling.

“I do think there’s a likelihood, but there’s risk that the president has at this point if he appeals and the decision gets worse, and that’s always a debate that goes on,” he said.