Politico on the CFPB After Cordray

Here. Cordray's recess appointment expires in December. What happens then?  Under Dodd-Frank, Cordray's deputy takes over as acting director. Right now, Steve Antonakes is the acting deputy. But some of those who argue Cordray's appointment is invalid claim also that his naming Antonakes as acting deputy is invalid.  Of course, the Supreme Court may rule that Cordray's appointment was valid (or rather, the NLRB members whose appointments are at issue in the Noel Canning case) or even if the courts find Cordray's appointment was invalid, they could nevertheless ratify his decisions–but any decision in Noel Canning is unlikely before Cordray's appointment expires.  Another option, according to Politico:

[T]he court could allow the Treasury Secretary Jack Lew to assume the role  former Secretary Timothy Geithner did before Cordray was appointed director and  oversee the CFPB. In that role, Lew could ratify Cordray’s actions and delegate  the day-to-day responsibilities to an adviser — presumably someone within the  bureau, like Antonakes.

Not everyone agrees that’s permissible under Dodd-Frank, and it could lead to  even more legal challenges.

Either way, without a director, the bureau would be stripped of its powers to  oversee nonbanks and be limited to enforcing laws transferred to the bureau from  other agencies.

I'm not clear on which court the article is referring to or what procedural steps would lead to a court coming to such a result, but I hope we don't need to find out.

0 thoughts on “Politico on the CFPB After Cordray

  1. Kent Barnett says:

    For what it’s worth, I’ve published an article that contends that the deputy director’s appointment is most likely unconstitutional under the Supreme Court’s most recent Appointments Clause jurisprudence. The Director–even if appointed properly himself–does not head a “department” for constitutional purposes and thus cannot appoint inferior officers under the “Excepting Clause.” I argue, however, that the Court’s doctrine is wrong.

  2. Brian says:

    I think it may be referring to the Supreme Court, which may want to ameliorate an affirmance by some reference to the de facto officer doctrine or musings about how the agency can operate in light of its rulings. Cf. Marathon Oil.

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