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House of Representatives Wants Chance to Defend CFPB’s Leadership Structure

The House of Representatives is seeking an opportunity to weigh in and convince the Supreme Court not to hear arguments in a case that would question the constitutionality of the leadership structure atop the Consumer Financial Protection Bureau.

The House filed a motion for leave yesterday because it was notified the day before amicus briefs were due that the Solicitor General and the CFPB were changing course by agreeing that the agency’s leadership structure — which allows for the director to be removed only for cause — is unconstitutional.

“By not defending the Consumer Bureau’s independence, the Trump Administration is choosing special interests over America’s consumers,” said Rep. Nancy Pelosi [D-Calif.], the Speaker of the House, in a statement. “As the lower courts have recognized in upholding the constitutionality of the for-cause provision, ‘Congress established the independent CFPB to curb fraud and promote transparency in consumer loans, home mortgages, personal credit cards, and retail banking.’ In the grip of President Trump, we have already seen the Consumer Bureau abandon its mission to protect the American people from unfair and predatory conduct.”

In filing its motion, the House also asked to be designated as amicus curiae which would allow it to mount a defense against those claiming the leadership structure is unconstitutional.

The filing was authorized by the Bipartisan Legal Advisory Group, which is made up of a handful of House leaders from both sides of the aisle. The two Republicans in the group — Rep. Kevin McCarthy [R-Calif.] and Rep. Steve Scalise [R-La.] dissented against submitting the filing.

Because no split at the Circuit court level exists, there is no reason for the Supreme Court to hear arguments in the case, the House’s brief argues.

What makes this interesting, from a political perspective, is that if the Supreme Court were to determine that the leadership structure of the CFPB is unconstitutional and the president should be able to fire the director at any point, if a Democrat were to win the presidential election next year, he or she would be able to fire Kathy Kraninger and replace her without anyone protesting. In a way, the Democrats appear to be willing to fight against having that opportunity.

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