Further Setback For The CFPB Director’s Authority?

A split panel of the U.S. Court of Appeals for the Third Circuit issued a decision yesterday holding that a "recess" appointment to the National Labor Relations Board (NLRB) was unconstitutional and invalid. NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, 12-1936 (3rd Cir. May 16, 2013). Like the District of Columbia Circuit Court's ruling in Noel Canning v. NLRB, 705 F.3d 490 (2013), the Third Circuit ruled that the president's authority to make "recess appointments" applies only to appointments made between sessions of Congress and does not apply to appointments made during congressional sessions. The ruling calls into question, yet again, the validity of the recess appointment of Richard Cordray to the CFPB.