CFPB Wins New Chance to Defend Single-Director Power Structure
The full U.S. Court of Appeals for the D.C. Circuit will take a fresh look at a ruling that struck down the Consumer Financial Protection Bureau’s structure as unconstitutional, setting the stage for a legal fight that carries significant implications for the future of the agency in the Trump administration.
The D.C. Circuit’s decision Thursday gives the CFPB another chance to defend itself as Republicans in Congress, emboldened by the election of President Donald Trump, push to roll back the agency’s authority. Sen. Ted Cruz, R-Texas, this week filed a bill to abolish the agency as other Republicans continued their legislative push to turn the CFPB into a bipartisan commission.
In a two-page order, the D.C. Circuit vacated a three-judge panel ruling in October in which Judge Brett Kavanaugh railed against the “massive, unchecked power” of the CFPB, an independent agency that was born out of the Dodd-Frank financial reforms.
Many companies latched onto the D.C. Circuit’s panel ruling in PHH Corp. v. CFPB, hoping to convince federal trial judges around the country to take up the D.C. Circuit’s finding that the agency’s structure was unlawful.
Kavanaugh, writing for a divided court, said the president should have the power to remove the CFPB’s director at any time, rather than only for cause. That ruling, combined with the election of a president who has pledged to “dismantle” Dodd-Frank, fueled concerns that Trump will fire CFPB Director Richard Cordray, whose five-year term expires in July 2018.
The CFPB declined to comment on the D.C. Circuit’s decision Thursday. Lawyers for the mortgage company PHH, represented by a team from Gibson, Dunn & Crutcher, were not immediately reached for comment.
Reacting to the news, NAFCU's President and CEO Dan Berger released a short statment that said, “NAFCU will continue to monitor the developments in this litigation."
CUNA President/CEO Jim Nussle released a statment via email which stated, "CUNA continues to advocate that the current one-size-fits-all regulatory environment isn’t working. Creating a commission of multiple voices to lead the bureau will allow the bureau to function in the best interests of consumers well into the future."
The D.C. Circuit’s decision Thursday likely came as a relief to proponents of the CFPB. Last month, top Democratic lawmakers and 16 state attorneys general unsuccessfully tried to intervene in the case, arguing that their participation was necessary to protect the CFPB in case the Trump administration abandoned the defense of the agency.
The full D.C. Circuit scheduled oral arguments for May 24, with briefing to begin on March 10.
PHH Corp., a home mortgage provider, brought the constitutional challenge as part of its appeal of a CFPB enforcement action. In 2015, Cordray ordered PHH to disgorge $109.2 million after finding that the company had engaged in a kickback scheme.
Originally published on National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.