Brief of Amici Curiae in PHH Corporation v. CFPB
The CFPB was designed to be—and operates as—a government unto itself.
It is vested with sweeping executive authority to make and enforce rules that affect virtually every sector of the U.S. economy. This authority is entrusted to a single individual, the Director, who serves a five-year term that is longer than the President’s. But the Director does not answer to the President, who is prohibited from removing him from office except for cause. Indeed, the Director stands above the President, as by statute the Director’s view of consumer financial protection law prevails over the President’s if the two disagree.
Further, unlike the President, who is checked in the exercise of his executive authority by his dependence on congressional appropriations to fund the government he runs, the CFPB is exempted from Congress’s power of the purse and accompanying congressional oversight. Indeed, the CFPB is entirely selfperpetuating, empowered to simply take hundreds of millions of dollars from the Federal Reserve System for its own use, without approval or review from the legislative or executive branches. Nor did Congress stop at freeing the CFPB from external restraints; in the interest of fostering efficiency and independence, Congress also eschewed the creation of any internal checks or balances within the CFPB, such as those afforded by a deliberative multi-member commission structure.
The Constitution does not permit the creation of such an entity. Rather, to protect individual liberty, the Constitution mandates a separation of powers that imposes checks, balances, and accountability on the exercise of governmental authority. Congress was clear in creating the CFPB that it deliberately removed these restraints in the interest of expediency, efficiency, and what it perceived to be the virtues of unaccountability in the enforcement of consumer financial protection law. But whatever the merits of Congress’s policy objectives, the Constitution does not permit the amalgamation of such sweeping and unchecked authority in a single executive entity. Certain features of the CFPB viewed in isolation may or may not be constitutionally permissible, but the combination most definitely is not. Fidelity to the Constitution requires that the CFPB be invalidated.
The Court cannot avoid this constitutional question. Amici’s own case in the District Court demonstrates that failing to address the CFPB’s unconstitutional structure in this case would only delay the inevitable adjudication of this question and perpetuating the very injury that this Court has held affords amici standing to challenge the CFPB’s structure.