I have previously blogged about the constitutional issues raised by the recess appointment of Richard Cordray as CFPB Director, both on their own, here and here, and, in connection with lawsuits that have challenged President Obama’s contemporaneous NLRB recess appointments, here, here, and here.  One of the issues flagged in those earlier blogs was that, in contrast to the NLRB actions, there did not yet appear to be a plaintiff that would have standing to challenge the Cordray appointment.… Continue Reading

On Tuesday April 17, Senate Minority Leader Mitch McConnell (R-Ky.) announced that he and other Senate Republicans intend to file a brief amicus curiae in a case challenging the validity of President Obama’s January 4 recess appointments to the National Labor Relations Board. The case, Noel Canning v. NLRB, challenges an NLRB cease and desist order relating to a purported refusal to bargain, and is currently pending before the United States Court of Appeals for the D.C.… Continue Reading

Two days after President Obama’s January 4 recess appointments to the NLRB and the CFPB, DOJ’s Office of Legal Counsel (“OLC”) issued a 23-page opinion (not publicly released until January 12) on the legality of those appointments (the “Opinion”). Written against a backdrop of pro forma Senatorial sessions which began in 2007 in the Bush administration and continue during the current administration, the Opinion addresses two issues: (1) whether the President had authority to make recess appointments during the recess that included January 4, 2012, and (2) whether the pro forma sessions disabled him from making such recess appointments.… Continue Reading