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The Department of Justice, in a legal opinion released yesterday, concluded that the president had the discretion to appoint Richard Cordray as director of the Consumer Financial Protection Bureau earlier this month during a three-day break in Senate pro forma sessions.

Cordray was appointed to lead the CFPB on Jan. 4. Some lawmakers contend that the break in Senate sessions was not long enough to determine that it was in recess.

Yesterday's Justice Department opinion differs from that stance. The opinion said the pro forma sessions the Senate regularly holds in January "do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to ‘receive communications from the President or participate as a body in making appointments.'" Therefore, the department concluded, the president has the authority to make appointments during this period.

The Justice Department opinion and other factors surrounding Cordray's appointment are likely to come up during a Jan. 24 hearing of the House Oversight Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs. Cordray is slated to testify at this hearing.

Republican lawmakers have stalled Cordray's appointment since July in favor of replacing the CFPB director position with a bipartisan, five-member commission.

NAFCU would prefer that a commission be in charge of the bureau rather than a single director. NAFCU has also long maintained that the CFPB should not have oversight authority over credit unions. However, the association believes that the new CFPB director is open to hear the perspective of credit unions.