Yesterday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Noel Canning v. National Labor Relations Board. The outcome in the case could have implications for the validity of CFPB Director Cordray’s appointment because it challenges the National Labor Relations Board’s authority to take various actions based on the alleged invalidity of President Obama’s recess appointment of three individuals to the NLRB.
Amicus briefs in support of the plaintiff have been filed by House Speaker John Boehner and Senator Mitch McConnell joined by 41 other Republican senators. In addition, Professor Victor Williams of Catholic University’s Columbus School of Law has filed an amicus brief that argues that recess appointments are not subject to judicial review because they raise nonjusticiable political questions. Professor Williams has filed similar amicus briefs in other cases challenging the NLRB appointments.