Consumer Financial Protection Bureau v. All American Check Cashing, Inc.
The 2008 financial crisis decimated the American economy and caused millions of families to lose their homes. After months of evaluating the roots of this crisis and the types of reforms needed, Congress concluded that a major culprit was the failure of a fragmented and unaccountable consumer financial protection regime to safeguard homeowners from reckless financial products. To remedy this, Congress established a new agency, the Consumer Financial Protection Bureau (CFPB), that would have the independence and mission focus needed to prevent a recurrence of those problems and respond to the challenges of an evolving financial marketplace. Congress structured the Bureau to be led by a single director, rather than a multimember commission, to avoid the gridlock and delay to which commissions are susceptible. And to insulate the Bureau from industry pressure and political interference, while ensuring accountability, Congress provided that its director may be removed by the president for good cause (“inefficiency, neglect of duty, or malfeasance in office”) but not for policy disagreements alone.
CAC filed a friend-of-the-court brief on behalf of current and former members of Congress who helped enact, or otherwise are familiar with, the 2010 Dodd-Frank Act that created the CFPB. In our brief, we first explain that the Constitution gives Congress broad power to shape the structure of federal agencies and to give their leaders a degree of independence from presidential control. As we show, the Framers deliberately provided such flexibility to Congress so that future lawmakers could respond effectively to new and unforeseen national crises. Our brief then describes how Congress exercised this discretion after the devastating financial crisis of 2008, making a considered decision that an independent Bureau led by a single director could best combat the types of consumer financial abuses that caused the near-collapse of the American economy. Finally, our brief demonstrates that Congress had every right to make this choice: the Supreme Court has long recognized that the heads of regulatory agencies may be shielded from removal at will, and the CFPB is materially indistinguishable from the agencies addressed in the Court’s prior decisions. Thus, the Bureau’s leadership structure is constitutional.
The Court of Appeals will hear oral arguments the week of March 11, 2019.
September 17, 2018
CAC files amicus brief5th. Cir. Amicus Brief