D.C. Circuit strikes down last year’s recess appointments; serious implications for CFPB

This post picks up from Allison's earlier post to add more details.

As Allison noted, the U.S. Court of Appeals for the D.C. Circuit, ruling today in Noel Canning v. NLRB, held that President Obama's recess appointments of three NLRB commissioners in January 2012 were invalid because the Senate was not in a constitutionally-required "Recess." The three-judge panel, which consisted of all Republican appointees, focused its reasoning on text and history in ruling that a functional break in Senate business — during which only pro forma sessions are held — does not trigger the President's constitutional power to fill vacancies, which arises only during a formal "Recess" of the Senate. The court went on to restrict the recess appointment power further, holding that it extends only to positions that become vacant during the "Recess," not to vacancies that existed prior to the "Recess," even if the vacancies arose during a prior "Recess."

CFPB head Richard Cordray, whom President Obama plans to renominate, was appointed at the same time as the commissioners whose appointments this decision invalidates, so as we've noted, this ruling — if it stands — has serious implications for the CFPB and its actions in the past year. The government may seek review of the decision before the full D.C. Circuit or seek review by the Supreme Court. Given the significant implications of this case for the functioning of federal agencies, as well as the explicit circuit conflict on this issue (today's opinion notes that it conflicts with a decision of the Eleventh Circuit, Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004)), this case would seem a good candidate for Supreme Court review.

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