Amicus briefs filed in Seila Law

Ballard Spahr LLP

Ballard Spahr LLP

The first round of amicus briefs have been filed with the U.S. Supreme Court in Seila Law.  All of the amici that take a position on the Bureau’s constitutionality agree with the position taken by both Seila Law and the CFPB that the Bureau’s structure is unconstitutional.  However, three of the amici take no position on constitutionality, with two of the amici addressing only the appropriate remedy if the Supreme Court concludes that the Bureau’s structure is unconstitutional and another of the amici addressing only the Supreme Court’s jurisdiction.  While all of the amici that address constitutionality agree that the Bureau’s structure is unconstitutional, they take different positions on the appropriate remedy, with several amici arguing that because Title 10 of the Dodd-Frank Act cannot properly be severed, the appropriate remedy is for the Court to strike all of Title 10.

The amici include the following:

  • Consumer Bankers Association.  CBA takes no position on the Bureau’s constitutionality.  It argues that the Court should sever all of Title 10, not just the for-cause removal provision, and stay its judgment for six months to give Congress time to enact a permissible structure.
  • Alan B. Morrison, George Washington University Law School.  Professor Morrison argues that because there is no actual controversy between the parties, the Court should dismiss the certiorari petition for lack of jurisdiction or as improvidently granted.
  • The Buckeye Institute.  The Institute argues that the Court should not conduct a severance analysis and can provide complete relief to Seila Law by invalidating the CID issued by the Bureau.
  • Chamber of Commerce. The Chamber argues that the Court should declare the Dodd-Frank Act’s for-cause removal provision invalid and reverse the Ninth Circuit’s judgment so as to deny the Bureau’s petition to enforce the CID.  The Bureau should be allowed to continue to operate with a Director who is removable by the President at will, with Congress to decide “whether [it] would wish that [result].”  According to the Chamber, “Congress is best positioned to address whether and how to revise the Bureau’s structure.”
  • Mortgage Bankers Association.  The MBA takes no position on the Bureau’s constitutionality.  It argues that if the Court finds the Bureau’s structure is unconstitutional, the Court should sever the for-cause removal provision from the Dodd-Frank Act.
  • Credit Union National Association.  CUNA argues that the Bureau’s structure is unconstitutional and that the Court should strike all of Title 10, vacate the lower court decision enforcing the Bureau’s CID, and stay its mandate for “a short period [to] allow the political branches time to respond to the Court’s decision and reconstitute the Bureau.”

All of the amicus briefs are available here.  We expect a second round of amicus briefs in support of the Bureau’s constitutionality to be filed after Paul Clement, the amicus curiae appointed by the Supreme Court to defend the Ninth Circuit’s judgment upholding the Bureau’s constitutionality, files his brief.  His brief must be filed by January 15.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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