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:
All of the amicus briefs are available here.