Carter Dougherty of Bloomberg has a must-read story on the practical effects of the constitutional controversy over Rich Cordray's appointment. The D.C. Circuit's ruling in Noel Canning, he reports, "has hampered the U.S. Consumer Financial Protection Bureau, slowing some enforcement, impeding recruitment of a second-in-command, and delaying joint ventures with the states."
Among other things, the Bloomberg story breaks the news that a Native American tribe operating an online lending business — the Chippewa-Cree Tribe of Montana — has resisted a civil investigative demand from the Bureau based in part on a challenge to the recess appointment:
The Chippewa-Cree challenged the request in part on grounds Cordray’s appointment was illegal. Cordray hasn’t acted on the petition, which could require him to address the constitutional question, the people said. By contrast, when three other companies filed similar petitions, Cordray published responses within 90 days, records show.
At the Volokh Conspiracy, CFPB opponent Todd Zywicki suggests that challenges of this sort by private parties, together with Jeb Hensarling's grandstanding in Congress, could be enough set up an argument against use of the de facto officer doctrine to defend the Bureau's past actions. I'm not so sure about that, and will have more to say about that argument soon.
