CBA Files Amicus Brief in CFPB Constitutionality Case



The Consumer Bankers Association (“CBA”) is the only member-driven trade association focused exclusively on retail banking. CBA members operate in all 50 states, serve more than 150 million Americans, and hold two thirds of the country’s total depository assets. Eighty-five percent of CBA’s corporate members are financial institutions holding more than $10 billion in assets, and among them are some of the nation’s largest retail banks. CBA’s associate members include the premier providers of goods and services to those institutions. Whether buying a home, financing an education, or launching a small business, consumers look to CBA members for help in achieving the American dream.

As the voice of the retail banking industry, CBA represents its members and their customers in Congress and regulatory agencies, communicates the vital services retail banks provide to American consumers, and serves as the industry’s definitive resource for engagement, analysis, and insight with respect to the Consumer Financial Protection Bureau (“CFPB,” or the “Bureau”). In that capacity, CBA has advocated for a bipartisan, five-member Bureau since well before Dodd-Frank’s passage. As CBA has argued, a commission structure—the one proposed by then-Professor Warren and later ratified in the version of Dodd-Frank the House of Representatives originally passed—would provide regulatory fairness, balance, and stability that cannot exist when every new appointment has the power to upend the regulatory environment unilaterally. Moreover, the elimination of the Bureau’s single-director structure will help alleviate the political strife that has hindered CFPB since its inception. See, e.g., Bipartisan Policy Center, Analysis of the Nominations Process for Financial Regulators 3, 5 (Apr. 4, 2013) ( (noting that, on average, it takes “almost two years for a vacancy at a single-director [independent] agency to be resolved”—a “much longer” period than “the time involved for commission members and for chairs of commissions”).

CBA takes no position on whether the single-director structure Congress ultimately enacted comports with the Constitution’s requirements. But if the Court holds that it does not, CBA is vitally interested in the issue of remedy. That issue turns on a single question: whether, in the view of the Congress that enacted Dodd-Frank, independence from the Executive Branch was more fundamental to the Bureau’s structure than leadership by a single director. If it was, then sacrificing the Bureau’s independence to preserve its single-director structure would result in a statute Congress would never have enacted, thus “circumvent[ing] the intent of the legislature” in a manner this Court’s precedents foreclose. See, e.g., Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 330 (2006) (“[T]he touchstone for any decision about remedy is legislative intent.”). Indeed, the Court has made clear that it would be legislating, not judging, if it employed severability doctrine to “create[] * * * legislation that Congress would not have enacted.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987); see also United States v. Treasury Employees, 513 U.S. 454, 479 n.26 (1995).

To read full brief please click here.