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CFPB’s Constitutionality at Stake

The U.S. Supreme Court has agreed to hear the appeal of a California law firm that argues the Consumer Financial Protection Bureau is unconstitutionally structured, positioning the justices to settle longstanding questions surrounding the legitimacy of the independent agency.

The law firm, Seila Law, alleges that the structure of the agency grants too much power to its director. According to court papers, given the CFPB’s broad law enforcement powers, the fact that the president may only remove the director of the CFPB “for inefficiency, neglect of duty, or malfeasance in office” is unconstitutional. In May, the CFPB beat Seila Law before a panel of the 9th U.S. Circuit Court of Appeals.

“Seila Law contends that an agency with the CFPB’s broad law-enforcement powers may not be headed by a single Director removable by the President only for cause. That argument is not without force,” Circuit Judge Paul Watford wrote for the court.

CNBC reports that a decision in the case is likely by the end of June.

Last year, in a split decision, a Washington appeals court has reversed a previous ruling, declaring the structure of the Consumer Financial Protection Bureau to be constitutional after all. The Court of Appeals for the District of Columbia Circuit ruled in January 2018 that the CFPB's structure is constitutional and that the director of the agency can only be fired by the president for “inefficiency, neglect of duty, or malfeasance in office.”

The court's ruling read, in part, "None of the theories advanced by PHH supports its claim that the CFPB is different in kind from the other independent agencies and, in particular, traditional independent financial regulators."

On the subject of whether the CFPB director can be removed by the president without cause, the ruling read, "The CFPB’s authority is not of such character that removal protection of its Director necessarily interferes with the President’s Article II duty or prerogative. The CFPB is neither distinctive nor novel in any respect that calls its constitutionality into question. Because none of PHH’s challenges is grounded in constitutional precedent or principle, we uphold the agency’s structure.”

About Author: Seth Welborn

Seth Welborn is a Reporter for DS News and MReport. A graduate of Harding University, he has covered numerous topics across the real estate and default servicing industries. Additionally, he has written B2B marketing copy for Dallas-based companies such as AT&T. An East Texas Native, he also works part-time as a photographer.
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