This past Thursday I went to the program of the ABA Section on Antitrust Law on the topic of Consumer Protection. I was looking for some help with designing a consumer protection course but the focus of this program was a bit narrow. Several current and former FTC commissioners, a EU counterpart, and representatives of the plaintiffs' and defendants' counsel generally addressed privacy issues and FTC enforcement actions and coordination with the EU. All good stuff but too refined to serve as the basis of a survey course.
Perhaps most interesting was an appearance by Roberto J. Gonzales, Deputy General Counsel for the Consumer Financial Protection Bureau. And most interesting, at least to me, was his response to a question about the validity of the rule-making and enforcement powers of the CFPB in light of the decision of the DC Circuit in Noel Canning v. NLRB. If upheld by the Supreme Court, the decision voiding President Obama's recess appointments to the NLRB would seem to apply equally to his appointment of Richard Cordray as Director of the CFPB.
Gonzalez suggested two reasons why there might be less ardor for attacking Cordray's appointment and what has flowed from the CFPB under his tenure. First, Gonzalez hinted that the text of its enabling statute, Dodd-Frank, was both vague and draconian so that the CFPS's regulations ameliorated the law. Second, Dodd-Frank gave states' attorneys general concurrent enforcement power so it's not like the statute will be a dead letter even without the CFPB as the cop on the block.
Notwithstanding Gonzalez's observations, I suspect that future administrative enforcement of CFPB regs will meet with a Vacancy Clause challenge. Whether the challengers are ultimately pleased with the result remains to be seen.