D.C. Circuit Court Upholds as Constitutional the Structure of the CFPB: Part 2 Page: 1 of 3
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Congressional
Research Service Legal Sidebar
Informing the legislative debate since 1914
D.C. Circuit Upholds as Constitutional the
Structure of the CFPB - Part II
Jared P. Cole
Legislative Attorney
Todd Garvey
Legislative Attorney
February 12, 2018
As discussed in Part I of this two-part Sidebar, the en banc U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) issued a decision last week upholding the structural design of the
Consumer Financial Protection Bureau (CFPB). The court ruled in PHH Corp. v. CFPB that the features
of independence granted to the agency in the Dodd Frank Act, including a provision that limits the
circumstances in which the President can remove the CFPB Director, do not violate Article II's vestment
of executive power in the President. While Part I discusses the court's majority opinion, this part
examines several of the separate opinions from PHH that take a different view of the constitutional issues
at stake in the case. The Sidebar then concludes with some considerations for Congress, including the
potential impact of the decision for the independence of federal agencies and the possibility of Supreme
Court review of the en banc ruling.
The lengthy PHH decision included several separate opinions that departed significantly from the
majority's approach and could be a preview of how the Supreme Court could evaluate the underlying
constitutional issue on appeal.
Concurring Opinions
Judge Thomas B. Griffith, for example, concurred in the judgment only, hinging his ultimate conclusion
that the removal restrictions for the CFPB Director were constitutional on a different interpretation of the
removal restrictions than his colleagues. While the panel majority appeared to assume that the "for-cause"
removal restrictions for the CFPB Director did limit the President's power to remove the Director, Judge
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Garvey, Todd & Cole, Jared P. D.C. Circuit Court Upholds as Constitutional the Structure of the CFPB: Part 2, report, February 12, 2018; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1156981/m1/1/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.