Government LendingRegulatory

Supreme Court to take on CFPB constitutionality case

Consumer groups call on Kavanaugh to recuse himself

The Supreme Court announced Friday it will take on the case challenging the constitutionality of the Consumer Financial Protection Bureau’s leadership.

Back in 2017, a battle between the CFPB and PHH began, starting with a $103 million increase to a $6 million fine initially levied against PHH for allegedly illegally referring consumers to mortgage insurers in exchange for kickbacks.

PHH challenged this ruling in court, and the fight ended, or so it appeared, with the CFPB’s leadership structure being declared unconstitutional by the Court of Appeals for the District of Columbia Circuit in a 2-1 vote.

The CFPB fought that ruling, asking the court to rehear the case en banc, meaning that it wanted the entire court to hear the case, rather than the three judges who ruled on the case previously.

And now the Supreme Court has agreed to take on the case.

As it stands now, President Donald Trump cannot fire the CFPB director unless it’s for cause. The previous decision made the CFPB director fireable at will, but that’s not the case anymore as the case continues to be challenged in court.

But now even CFPB Director Kathy Kraninger is siding against her own bureau, saying, “The bureau should adopt the Department of Justice’s view that the for-cause removal provision is unconstitutional.”

As expected, Democrats have not been pleased with Kraninger’s stance on the issue. In the semi-annual hearing for the bureau Wednesday, Rep. Maxine Waters, D-Calif., brought up the issue.

“You have forced the Consumer Bureau to abandon its longstanding defense of the constitutionality of the agency’s structure,” Waters said.

And consumer groups are nervous about the hearing, saying the newest justice should recuse himself from the case because he has “demonstrated bias.”

“Justice Kavanaugh has demonstrated bias against the CFPB on these exact issues and must recuse himself from this case,” Allied Progress Director Derek Martin said. “He has previously weighed in on the specific question at stake in this matter – whether the CFPB director can be fired without cause. This case deserves to receive truly impartial judgment.”

But the housing industry was happy with the news, and some are even hoping this will lead to a board of people overseeing the CFPB, rather than one director.

“CUNA has consistently advocated for legislation that provides for a multi-person, bipartisan commission to lead the bureau, as was originally proposed by the Obama administration in 2009,” said Ryan Donovan, Credit Union National Association chief advocacy officer. “A commission is better for consumers because it would enhance the independence of the bureau, bring diverse perspectives to the policymaking table, ensure greater stability, and be more consistent with our country’s democratic principles.”

“We thank the Supreme Court for agreeing to consider the constitutionality of the CFPB’s current structure and intend to represent credit unions’ views before the court,” Donovan said.

The National Association of Federally-Insured Credit Unions agreed the CFPB should be overseen by a board.

“Regardless of how the Supreme Court rules – NAFCU still believes that a commission structure at the CFPB is absolutely essential to ensuring greater transparency and accountability,” NAFCU President and CEO Dan Berger said. “A commission would allow for more open debate, diversity of thought and a stable leadership structure that would better serve consumers in the long-run.”

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