CFPB Constitutionality at the Supreme Court - CDIA

Eric Ellman  /  March 4, 2020  /  Views

CFPB Constitutionality at the Supreme Court

The SCOTUS blog yesterday had two postings summarizing oral argument earlier in the day in a case that questions the constitutionality of the CFPB.  In Argument analysis: Justices divided in challenge to CFPB structure, Amy Howe summarized the case:

“The Consumer Financial Protection Bureau is headed by a single director, who is appointed by the president and confirmed by the Senate to serve a five-year term. Once that director is in office, she can only be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.” This morning both a California law firm under investigation by the CFPB and the CFPB itself told the Supreme Court that these restrictions on the removal of the bureau’s director are unconstitutional. If the justices agree, they must then decide what the remedy should be for the constitutional violation. The fate of the CFPB, as well as other agencies with similar structures, could hinge on their answer.”

In A “view” from the courtroom: “Violent agreement” and some disagreement, Mark Walsh provided the human interest view of the argument (yes, oral arguments can also be human interest stories) and he noted that the argument was, “an engrossing seminar on the separation of powers but occasionally devolved into testiness.”

Howe’s posting summarizes the argument this way:

“After over 70 minutes of argument, it was hard to predict exactly how the court will decide the case. There seemed to be relatively little appetite, beyond Ginsburg and Sotomayor, for dismissing the case without deciding the merits, as Clement suggested. The most likely scenario seems to be that a majority on the court will conclude that the CFPB structure is unconstitutional but will allow the CFPB itself to survive. We won’t know for sure until the decision is released sometime this summer.”


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