Richard Cordray’s ascension to official director of the Consumer Financial Protection Bureau (CFPB) may get shot down if the courts overturn his appointment due to “scant precedent on this issue,” reports The Hill.
President Obama’s recent recess appointments to the CFPB and the National Labor Relations Board (NLRB) may not hold up in court, despite being defended by the Department of Justice.
“It’s untested ground. If I were a judge, I could write out an opinion either way. There’s no clear precedent,” Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Reagan, is quoted as saying in the article.
The Justice Department has argued that the pro forma sessions the Senate has held since Dec. 17 do not constitute genuine sessions of work and that the upper chamber has been, for all practical purposes, on vacation.
But Fried, who has sided with the Obama administration on challenges to the constitutionality of healthcare reform, said courts might not be willing to judge what qualifies as working sessions of the Senate, especially considering how much time the chamber spends on quorum calls lately.
“A court might very well say that we don’t want to start saying something the Senate calls a session is not a real session because not a lot of senators are around,” Fried said. “One might say that this whole year is one which is not a real session.”
A law professor quoted in the article notes possible inconsistency in standards in regards to “pro forma” sessions counting as working sessions, as the two-month extension of the payroll-tax holiday was approved in a pro forma session.
The House is still deciding whether or not it will pursue legal action against the recess appointees, according to a spokesperson for House Speaker John Boehner (R-Ohio).
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Written by Alyssa Gerace