LIT Preamble

Everyone is chiming in on the CFPB Constitutionality Question and it’s getting out of Control. Let’s hope the Supreme Court issues a “stay calm” opinion on Tuesday. Update: Tuesday came and went with silence from the Supreme Justices – so now – we wait.

House amicus brief. The House of Representatives has filed a motion seeking leave to file an amicus brief in support of the Ninth Circuit’s decision in Seila Law. While acknowledging that the deadline for filing amicus briefs has passed, the House notes that a timely amicus brief would have been due the day after the House received the CFPB’s letter announcing that it would no longer defend its constitutionality in the appellate courts or before the Supreme Court.

In the amicus brief it seeks to file, the House argues that Seila Law’s cert petition should be denied because there is no circuit split and the Ninth Circuit’s decision upholding the CFPB’s constitutionality is correct. It further states that if the court were to grant the petition and rule that the CFPB’s structure is unconstitutional, the proper remedy would be to sever the CFPA’s for-cause removal provision. Since the DOJ and CFPB are not defending the CFPB’s constitutionality, the House also asks the Supreme Court to consider appointing the House as amicus curiae, represented by the House General Counsel as counsel of record, to defend the CFPA and the judgment below.

The motion indicates in a footnote that the filing of the amicus brief was authorized by a vote of the Bipartisan Legal Advisory Group and that the Republican Leader and Republican Whip dissented from the filing. In addition to House Republican Leader Kevin McCarthy and House Republican Whip Steve Scalise, the other House members of the Advisory Group are Speaker Nancy Pelosi, Majority Leader Steny Hoyer, and Majority Whip James Clyburn. In arguing for the CFPB’s constitutionality, the Democratic members appear to be acting against their own political interest.

If the Supreme Court rules that the CFPB’s structure is unconstitutional and severs the for-cause removal provision, a Democratic President could replace the current CFPB Director without cause.

Seila Law reply. Seila Law has filed a reply to the Petition for a Writ of Certiorari Before Judgment filed by All American Check Cashing as well as the Petition for a Writ of Certiorari filed by the plaintiffs in Collins v. Mnuchin seeking review of the en banc Fifth Circuit’s decision that held the FHFA’s structure is unconstitutional. In each of those petitions, the petitioners argue that their case is a better vehicle than Seila Law to decide the constitutionality question presented in Seila Law.

All American’s primary argument for why its case is a better vehicle is that, unlike Seila Law, its case “squarely presents” the question of whether, even if the agency’s structure is unconstitutional, former Acting Director Mulvaney’s ratification of the CFPB’s challenged action cured any constitutional defect.

While their case involves the FHFA rather than the CFPB, the petitioners in Collins assert that their case is nevertheless “the best vehicle for ruling on the constitutionality of independent agencies headed by a single director.” Among the reasons offered by the Collins petitioners is that their case “concerns an agency that is currently defending its constitutional structure.”

In its response, Seila Law argues that All American’s presentation of the ratification issue “is not a virtue, but a vice” because “there is no circuit conflict on the validity of ratification” and the Fifth Circuit has not had an opportunity to consider the ratification question.

With regard to the Collins petition, Seila Law states that the Supreme Court “routinely appoints amici in similar circumstances” and points to the willingness of the House to defend the judgment below.

The briefs on Seila Law’s cert petition have been distributed for the Supreme Court’s October 11 conference.

Seila Law LLC v. Consumer Financial Protection Bureau

Pending petition

Issue: Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers.

Washington, we have a problem. Lawyers are being caught red-handed behaving like lawyers again. Let’s hope they’ve added the Burkes to their liars liability insurance risk. https://t.co/gXrpze8oB9 @LloydsofLondon @WAStateBar @cyrushabib @LillyAFowler @sao13th @asb_president pic.twitter.com/U7QKoMMQA5

— LawsInTexas (@lawsintexasusa) May 18, 2020