Justices Appear Divided Over How to Handle CFPB Leadership Structure

Reading the recaps of yesterday’s Supreme Court hearing which dealt with the constitutionality of the leadership structure of the Consumer Financial Protection Bureau, the most common word used to describe the mindset of the justices was “divided.”

“Justices Divided in Challenge to CFPB Structure” read one headline that offered an in-depth analysis of Seila Law v. CFPB. Another article started: “A sharply divided Supreme Court on Tuesday debated the constitutionality of the Consumer Financial Protection Bureau and whether a president should be able to remove its head for any reason, including disloyalty or policy differences.” Yet another: “The Supreme Court appeared divided Tuesday over the limits of a unique aspect of presidential power, and the extent so-called ‘independent’ federal agencies have from executive oversight.” And finally one more: “The Supreme Court appeared sharply divided along ideological lines Tuesday over the question of whether the structure of the Consumer Financial Protection Bureau (CFPB), an agency seen as a progressive achievement in the wake of the financial crisis, is unconstitutional.”

The apparent divisiveness of the Supreme Court justices was perhaps a function of the many different options they have in making a ruling in this case. Options ranging as far as shutting down the CFPB on one side to doing nothing at the other end of the spectrum left many wondering what the Supreme Court would ultimately decide is the best way forward.

Should they decide that the current structure of the CFPB — a director who can only be fired for “inefficiency, neglect of duty or malfeasance in office” — is constitutional, the justices wondered how that would ripple through other federal agencies, including those in the Cabinet.

Keeping the status quo, even though some argue it gives the director of the CFPB too much power, stops the president from firing people on a “whim,” said Justice Ruth Bader Ginsburg.

Justice Brett Kavanaugh, who famously wrote a dissenting opinion when he was a member of the Court of Appeals for the District of Columbia about the constitutionality of the CFPB’s leadership structure, wanted to look more into the future.

“”Just how this will play out if you were to win, it’s really the next president who’s going to face the issue, because the head of this agency will go at least three or four years into the next president’s term, and the next president might have a completely different conception of consumer financial regulatory issues yet will be able to do nothing about it,” Justice Kavanaugh said. “How do we deal with that real world consequence that seems different and troubling?”

A ruling on the case is expected by late June.

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