WASHINGTON, D.C. — In an amicus brief sent Tuesday, a group of current and former members of Congress that supported the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 urged the federal appellate court that deemed the Consumer FInancial Protection Bureau (CFPB)'s structure unconstitutional to rehear the case.
Arguing that the court’s October decision fundamentally altered the CFPB, the group wants all 17 of the U.S. Court of Appeals for the District of Columbia’s judges to be present, not just the three judges that ruled that the CFPB's single-director structure violates the federal Constitution.
The group consists of 21 current and former members of Congress, including Senators Elizabeth Warren (D-Mass, who is considered the architect of the CFPB, and Rep. Maxine Waters (D-Calif.). Every name listed in the brief were either sponsors of the Dodd-Frank Act, participated in drafting the law, serve or served on committees with jurisdiction over the federal financial regulatory agencies and the banking industry, or served in the leadership when Dodd-Frank was passed, the letter stated.
“The panel decision fundamentally altered the CFPB and hampered its ability to function as Congress intended,” the brief read. “It also called into question the constitutionality of other regulatory agencies with similar structural features. For those reasons alone, this case involved a question of ‘exceptional importance’ that merits reconsideration by the en banc court.”
The appelate court's October decision gave the president the power to remove the CFPB's director at will, as well as direct its activities. In its majority opinion, the court noted that CFPB Director Richard Cordray possessed “enormous power over American business, American consumers, and the overall U.S. economy.”
Granting the president the power to remove the director at will was the group’s biggest objection. In its letter, the group brought up the opposing side’s argument that by having removal restrictions, the president would be impeded in his ability to perform his constitutional duty. They argued, however, that the original provisions that allowed the director to be removable for cause, such as “’abusing [his] office[e],’ committing a ‘breach of faith,’ or ‘neglecting his duties or discharging them improperly,’” were enough to keep the director accountable, and gave the president enough power to remove the director if needed.
“The panel’s conclusion that the CFPB’s structure is unconstitutional flatly contradicts all of these decisions, and it does so principally because it views multi-member commissions as superior to agencies led by a single director,” the brief stated, in part. “The panel improperly elevated that policy judgment — one properly made by Congress — into a holding of constitutional law. That was plainly wrong, and consideration by the en banc court is thus warranted.”