Supreme Court Holds That Part of CFPB’s Structure Is Unconstitutional

Bradley Arant Boult Cummings LLP

This morning, the United States Supreme Court issued its decision in Seila Law v. CFPB. Authoring the opinion for a five-justice majority, Chief Justice John Roberts wrote that the Consumer Financial Protection Bureau’s (CFPB) single-director configuration, in which the CFPB’s director can only be removed for a specific list of reasons, was unconstitutional. However, the Supreme Court also found the removal provision severable from other parts of Dodd-Frank. This means that the CFPB survives, and that the CFPB director is now removable at will. Although this decision might be described as a victory for the financial services industry – it subjects the CFPB’s director to removal by the incumbent president – it did not go as far as some would have wished because the CFPB itself will survive. Moreover, this decision cuts both ways: Less business-friendly administrations may now elect to remove a CFPB director who takes a more reasonable approach to supervision and enforcement.

The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted in 2010, created the CFPB to serve as an independent agency for the purpose of enforcing consumer protection laws in the financial services space. As part of the CFPB’s statutory structure, the bureau is led by a single director who serves for a five-year term and who may be removed only for inefficiency, malfeasance, or neglect of duty. Although this structure purports to safeguard the independence of the agency, it also vests an extraordinary amount of executive power in a single individual who can exercise that power with little to no oversight.

The structure of the CFPB was challenged relatively soon after Dodd-Frank’s enactment. However, many of these early challenges fell short for various reasons, including lack of standing. The Seila Law case, though, did not suffer from the same type of standing defects that plagued earlier efforts. Specifically, in 2017, the CFPB issued a civil investigative demand (CID) to Seila Law to determine whether it had engaged in unlawful debt collection practices. Seila Law elected to challenge the CFPB’s authority to issue the request, and ultimately filed a lawsuit in the U.S. District Court for the Central District of California. The district court rejected Seila Law’s arguments and ordered compliance with the CID, and the Ninth Circuit Court of Appeals affirmed the district court’s decision.

Seila Law successfully petitioned for certiorari in June 2019. Notably, the solicitor general elected not to defend the Ninth Circuit’s decision. Rather, the Trump administration agreed with Seila Law that the CFPB’s structure was unconstitutional. The administration also contended that the provision stating that the CFPB director was removable for cause was severable from the remainder of the statute, meaning that the CFPB could survive a holding that the removal provisions were unconstitutional.

Chief Justice Roberts, writing for the majority, agreed with the administration’s position. First, the Supreme Court considered whether the New Deal-era case of Humphrey’s Executor v. United States, which considered and affirmed the constitutionality of the FTC, counseled that the CFPB’s structure should be upheld. Ultimately, the Chief Justice Roberts wrote that the FTC directorate, which consists of several members serving staggered terms and is bipartisan, was fundamentally different from the single-director CFPB. Likewise, the Supreme Court held that the decision in Morrison v. Olson, which approved the independent counsel statute, did not apply because the independent counsel has narrow authority to launch criminal investigations and prosecutions of government officials, unlike the broad investigative and prosecutorial authority vested in the CFPB director.

Ultimately, the Supreme Court determined that the provisions of the CFPB relating to the removal of the director were not rooted in constitutional history or tradition and were therefore not compatible with the structure of the Constitution. Critically, though, Chief Justice Roberts, as well as Justices Alito and Kavanaugh, held that the provisions related to removal of the director could be severed from the Dodd-Frank provisions that created the CFPB. According to  Chief Justice Roberts, Congress, in 12 U.S.C. § 5302, made it clear that “if any provision of [Dodd-Frank is] held to be unconstitutional . . . the remainder of this Act [should] not be affected.” Put differently, Chief Justice Roberts stated that “Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today.” Justice Thomas, joined by Justice Gorsuch, concurred in part, but wrote separately to explain that he would not reach the severability question and, instead, would have denied the CFPB’s petition to enforce the CID. Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, concurred with the opinion as it relates to severability, but dissented to the remainder of the decision.

Takeaways

Other than the remand of the decision to determine the effect of the decision on the specific CID issued to Selia Law, the immediate effect of this decision is not clear. We do not anticipate that the decision will have any discernable effect on any current CFPB enforcement actions or outstanding CIDs, however, we will be watching to see what happens on remand. Moreover, CFPB Director Kathy Kraninger will almost certainly remain in office in the near future. However, in the event of a change in presidential administration next year, this decision means that Director Kraninger could be removed before the end of her five-year term. Finally, there are several decisions pending in lower courts that may be affected by today’s decision. We will continue to monitor those cases and will report on any interesting developments.

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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