Court Rebuffs Challenge to Consumer Protection Chief, but Punts on Bureau Itself

Steven D. Schwinn, John Marshall Law School

Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.

The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.

This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.

The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.

But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.

But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.

Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.