CBA Files Amicus Brief in CFPB Constitutionality Case

December 16, 2019

CBA Files Amicus Brief in CFPB Constitutionality Case


WASHINGTON – The Consumer Bankers Association (CBA) today filed an amicus brief with the U.S. Supreme Court in the Seila Law LLC v. Consumer Financial Protection Bureau case. CBA’s brief argues, if the CFPB leadership structure is ruled unconstitutional, Congress should be allowed to create a constitutional structure, such as a bipartisan commission leadership structure similar to other independent federal agencies.


CBA does not believe the Supreme Court Justices can use the severability clause to change the Bureau’s “for-cause” Director to an “at-will” position without changing Congress’s intent to create an independent agency.


“The CFPB’s single-director leadership structure has created a political organization where one person, with virtually unlimited authority and budget, can pass or undo regulations for practically every financial institution and consumer in the country,” said CBA President and CEO Richard Hunt. “The Bureau’s mission is too critical for this uncertainty to continue and since Congress has failed to bring certainty and stability to the CFPB on its own, perhaps the Supreme Court can give them another chance.


“A bipartisan commission instead of a sole Director will help depoliticize the CFPB, strengthen its rulemaking ability and preserve the Bureau’s future.”  


When discussing the issue of creating a Director who serves at the will of the President, CBA’s brief states, “Eliminating the Bureau’s independence would only exacerbate the problems of political influence that have already plagued the Bureau, subjecting an industry that requires stability to potentially radical regulatory shifts with every new administration. It is inconceivable that Congress, which wanted to shield the Bureau from political vagaries, would have approved that result. Rather than create such an unwanted agency through judicial action, the Court should allow Congress to determine, through legislative deliberation, whether it would instead prefer a multi-member commission or no new agency at all … Eliminating the Bureau’s independence to preserve its single-director structure would contravene Dodd-Frank’s text, reassign to the Executive Branch a broad array of powers Congress would not have granted it, eliminate the premise on which Congress based its decision to abandon budgetary oversight authority, and exacerbate the problems to which political influence over the Bureau’s leadership and operations has given rise. It is, in sum, a choice Congress never would have made.”


If the CFPB’s structure is ruled unconstitutional, CBA argues the Court should sever Title X, not merely section 5491(c)(3), and stay its judgment for six months to provide Congress time to enact a permissible structure.


A copy of CBA’s amicus brief is available here.