CFPB's Structure Still Likely to Give Way in High Court Fight
With just one week until the U.S. Supreme Court hears debate on the constitutionality of the Consumer Financial Protection Bureau's leadership structure, financial services attorneys say the case for leaving the agency's single-director design alone has been given a boost in briefing but is still a long shot.
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"He's made a lot of really compelling points that I don't think many were considering before his brief was filed," said Scott Wortman, a partner in Blank Rome LLP's consumer financial services group.
But Clement may not have succeeded in moving the needle. With March 3's oral argument approaching, Wortman and other practitioners said the likeliest outcome remains that the high court will strike down the CFPB director's removal protection as unconstitutional, curbing the agency's independence.
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Wortman said the need to clear up the uncertainty and litigation delays that have resulted from the persistent fighting over the CFPB's constitutionality will likely also outweigh any prudential hesitations the justices may have about weighing in without a contested removal.
"This issue has been brought up in case after case that the CFPB has brought and it's even being challenged now at the outset when the CFPB issues a civil investigative demand," Wortman said. "This has made its way through district courts and the circuit courts, and it is the Supreme Court's job to make a determination on the law when there are ambiguities, equivocations and uncertainty in the judicial system, and for consumers and private businesses."
"CFPB's Structure Still Likely to Give Way in High Court Fight," by Jon Hill was published in Law360 on February 24, 2020.