Reuters by Alison Frankel 9/18/2019
On Tuesday, the Consumer Financial Protection Bureau joined the Justice Department in a brief asking the U.S. Supreme Court to consider whether the CFPB’s structure is unconstitutional. DOJ and the CFPB told the Supreme Court that they believe the appointment provision of the Consumer Financial Protection Act is unconstitutional because it says the bureau’s lone director cannot be removed from office without good cause. The law, according to DOJ and the CFPB, violates separation of powers doctrine by interfering with the president’s executive authority.
DOJ, as I’ve reported, has previously espoused that position in filings before both the District of Columbia U.S. Circuit Court of Appeals and the Supreme Court. But the CFPB has never before argued that the statute creating the bureau is constitutionally flawed. In fact, CFPB lawyers have argued just the opposite in trial and appellate courts across the country, including at the 9th Circuit in the case that’s now awaiting the Supreme Court’s attention. Just last month, the same CFPB lawyers who signed the new brief at the Supreme Court filed a brief at the 2nd Circuit that defends the constitutionality of the agency’s structure.
CFPB Director Kathy Kraninger acknowledged in a pair of letters sent Tuesday to Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi that the bureau can no longer argue in the lower courts that its structure is constitutional. And on Wednesday, the bureau’s lawyers sent letters to the 5th Circuit and the 2nd Circuit, which are both in the midst of appeals in which the CFPB’s constitutionality is at issue, informing the circuits that the bureau now agrees its appointments provision cannot survive.
More:
https://www.reuters.com/article/us-cfpb-standing-lawsuit/cfpb-just-told-scotus-its-unconstitutional-what-does-that-mean-for-its-mission-idUSKBN1W32UJ
