Ballard Spahr LLP

Amicus briefs have been filed in the U.S. Supreme Court in support of Paul Clement, who was appointed amicus curiae by the Court to defend the Ninth Circuit’s ruling in Seila Law that the CFPB’s structure is constitutional.  (Amicus briefs were filed last month in support of Seila Law and the CFPB.)

In his brief filed last week, Mr. Clement argued as an initial matter that the Court should conclude that the dispute over the Bureau’s constitutionality does not satisfy Article III jurisdiction requirements because Seila Law has not suffered an injury that is traceable to the constitutionality question.  He also argued that the dispute does not satisfy prudential considerations of ripeness.  Mr. Clement argued in the alternative that if the Supreme Court does reach the constitutionality question, it should hold that the Dodd-Frank Act’s “for cause” removal provision is constitutional.

All of the amici (with one exception) support Mr. Clement’s position that the CFPB’s structure is constitutional.  (The one exception is John Harrison of University of Virginia School of Law who takes no position on the merits but recommends that the Supreme Court avoid the constitutionality question on the grounds of ripeness by first addressing severance.  According to Professor Harrison, Seila Law’s “claim [to relief] rests on severability; [it] alleges that the removal restriction, to which it is not subject, is unconstitutional, not that the agency’s investigative power, to which it is subject is unconstitutional.”  In his view, if the Court “finds the CFPB’s investigative authority to be severable from the removal restriction, [Seila Law] will not be entitled to relief, whether or not the removal restriction is unconstitutional.”)

Several of the amici, as indicated below, also address whether the Dodd-Frank Act’s “for cause” removal provision is severable if there is a constitutional violation and argue that the provision is severable.  In addition, three “Financial Regulation Scholars” (consisting of the professors named below) argue that although the CFPB’s structure is constitutional, because there is no genuine controversy between a President and an appointee about a “for cause” removal provision, the Supreme Court should dismiss certiorari as improvidently granted.  In the alternative, they argue it should affirm the Ninth Circuit’s judgment or “remand the case to the lower courts to render a holistic analysis of the design features of the CFPB.”

The amici consist of the following:

  • State attorneys general and federal lawmakers
    • A group of 24 Democratic state attorney generals and the D.C. attorney general (Amici also argue severance would be the appropriate remedy for a constitutional violation.)
    • A group of 24 current and former Democratic U.S. Congressmen and Senators
    • Democratic U.S. Senators Sheldon Whitehouse, Richard Blumenthal, and Mazie Hirono
    • U.S. House of Representatives  (The House filed a separate motion seeking to participate in the oral argument.)
  • Public interest and consumer advocacy groups
    • National Consumer Law Center, Center for Consumer Law and Education, Center for Consumer Law and Economic Justice, Consumer Action, Yale Law School Housing Clinic, and Craig Cowie of the University of Montana Alexander Blewitt III School of Law (Amici also argue severance would be the appropriate remedy for a constitutional violation.)
    • Public Citizen, Americans for Financial Reform Education Fund, Consumer Federation of America, Consumer Reports, National Association of Consumer Advocates, Tzedek DC, and U.S. Public Interest Research Group Education Fund, Inc.
  • Academics
    • Martin S. Lederman and David C. Vladeck of Georgetown University Law School
    • Harold H. Bruff of University of Colorado Law School, Jessica Bulman-Pozen, Gillian Metzger and Peter L. Strauss of Columbia Law School, Jerry L. Mashaw of Yale Law School, Anne Joseph O’Connell of Stanford Law School, Peter M. Shane of Ohio University Moritz College of Law, and Paul R. Verkuil of the College of William & Mary
    • John Harrison of University of Virginia Law School
    • Rachel E. Barkow, Kirti Datla, and Richard L Revesz of New York University School of Law and Robert B. Thompson of Georgetown University Law School
    • Financial Regulation Scholars: Adam J. Levitin of Georgetown University Law School, Patricia A. McCoy of Boston College Law School, and Peter Conti-Brown of the Wharton School of the University of Pennsylvania
  • Other groups
    • Main Street Alliance
    • Project on Government Oversight and Morton Rosenberg (former Congressional Research Service analyst)
    • Self-Help Credit Union, Hope Credit Union, Hope Enterprise Corporation, National Association of Latino Community Asset Builders, and Inclusiv (Amici also argue severance would be the appropriate remedy for a constitutional violation.)

All of the amicus briefs are available here.

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