A petition for certiorari seeking review of the D.C. Circuit’s January 2013 decision in Noel Canning vs. NLRB has been filed in the U.S. Supreme Court. That decision, which we have blogged about before, held that President Obama’s January 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid under the Recess Appointments Clause of the Constitution. This holding is significant for the CFPB in that its rationale applies equally to Obama’s simultaneous recess appointment of Richard Cordray as Director of the Bureau.
Predictably, in view of arguments previously made before the Third Circuit in a different case, the petition challenges both holdings by the court of appeals on the merits and argues that the President’s authority under the Recess Appointments Clause is limited neither to intersession recesses nor to recesses that only came into existence during a recess. To underscore the importance of the case, the petition also argues that the Canning decision, if allowed to stand, portends dire consequences for the presidential recess appointment power.
We shall provide more in depth analysis of the certiorari petition next week.