Posts Tagged ‘DC Circuit’
On April 10, 2017, PHH filed its reply brief with the DC Circuit in the en banc rehearing of the PHH v. CFPB case. In its brief, PHH argues that if the Bureau’s single-director-removable-only-for-cause structure is constitutional, then there is essentially no limit to Congress’s authority to divest the President of all executive power. PHH argues: “[I]f Congress can divest the President of power to execute the consumer financial laws, then it may do so for the environmental laws, the criminal laws, or any other law affecting millions of Americans.” According to PHH, “The absence of any discernible limiting principle is a telling indication that the CFPB’s view of the separation of powers is wrong.”
On March 31, the CFPB filed its opening brief in the en banc rehearing of the PHH case before the DC Circuit. Also filing amicus briefs in support of the CFPB were consumer advocacy groups, Democratic members of Congress, and legal scholars.
The CFPB’s primary argument focused on whether the CFPB’s structure as an independent agency led by a single-director-removable-only-for-cause is constitutional. According to the CFPB, determining the constitutionality of the CFPB’s structure depends solely upon whether the for-cause removal restrictions “are of such a nature that they impede the President’s ability to perform his constitutional duty.”
When the Consumer Financial Protection Bureau (CFPB) filed its notice of charges against New Jersey-based mortgage lender, PHH Corp. in January 2014, there were few observers outside of the mortgage and real estate industries who paid much attention. Now, more than three years later, the legal battle has evolved into a constitutional challenge that the CFPB has suggested may be “the most important separation-of-powers case in a generation.” PHH’s case against the controversial federal consumer watchdog has captured the attention of not only the financial services industry, but lawmakers, state attorneys general, legal scholars, consumer advocacy groups and many consumers themselves.
Earlier this month, the DOJ filed an unopposed motion for leave to file an amicus brief which indicated that the Trump Administration might be switching sides in the legal battle, departing from the position that the DOJ took under President Obama. So it came as no surprise when the DOJ submitted its amicus brief in the PHH case last Friday and asked the DC Circuit to declare the CFPB’s leadership structure unconstitutional.