March 17, 2017
Today, the U.S. Department of Justice filed an amicus brief with the U.S. Court of Appeals for the District of Columbia for the court's en banc review of its panel decision in PHH Corporation v. Consumer Financial Protection Bureau. The Department of Justice urged the appellate court to find as the panel did and strike down the CFPB's for-cause removal restrictions found in the Dodd-Frank Act, leaving the CFPB's Director removable by the President at will. This position puts the Department of Justice in opposition to the position of the CFPB.
In its brief, the Department of Justice wrote that "a removal restriction for the Director of the CFPB is an unwarranted limitation on the President's executive power" and "because a single agency head is unchecked by the constraints of group decision-making among members appointed by different Presidents, there is a greater risk that an 'independent' agency headed by a single person will engage in extreme departures from the President's executive policy."
The appellate court granted the CFPB's petition for rehearing en banc on February 16, 2017. In the October 2016 decision, the appellate court found that the Director of the CFPB "enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President." The appellate court ruled that the CFPB would continue to operate, but "will do so as an executive agency akin to other executive agencies headed by a single person, such as the Department of Justice and the Department of the Treasury" and would be removable by the President.
Oral arguments are scheduled to be heard before the en banc court on May 24, 2017.
Prior Alerts:
October 11, 2016 - CFPB Structure Ruled Unconstitutional
February 16, 2017 - CFPB's Petition for Rehearing Granted in PHH Corporation