President Trump is scheduled to name his pick to replace Justice Anthony Kennedy on the Supreme Court on Monday and a judge with a history of animus toward the Bureau of Consumer Financial Protection is on the winnowed shortlist to be selected.
Judge Brett Kavanaugh, currently on the Court of Appeals for the District of Columbia, wrote the dissenting opinion in the January ruling in PHH v. CFPB case in which the full en banc panel of judges overturned a three-judge panel in deciding that the leadership structure of the agency is constitutional and that the director of the agency should only be allowed to be fired for cause.
In writing the dissenting opinion, which was used recently by a federal judge in New York who ruled that the entire bureau itself is unconstitutional, Judge Kavanaugh put himself in the crosshairs of consumer advocates and others who endorse the BCFP’s efforts.
“Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check – than any single commissioner or board member in any other independent agency in the U.S. Government,” Judge Kavanaugh wrote in his dissenting opinion. “Indeed, other than the President, the Director enjoys more unilateral authority than any other official in any of the three branches of the U.S. Government.”
Calling it a “fringe” opinion that the agency is unconstitutional, consumer advocates are lobbying hard to keep Kavanaugh from being nominated to the Supreme Court, where, it is possible that the CFPB’s constitutionality could be headed.
“The logic of Kavanaugh’s opinion on the CFPB would run counter to 150 years of precedent, [and] that same logic would ultimately question the constitutionality of the Federal Reserve and the comptroller of the Currency,” said Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, in a published report. “His legal logic, applied consistently, could reverse over a century of American financial regulation.”
Also on the shortlist to replace Justice Kennedy are Raymond Kethledge, who sits on the Court of Appeals for the Sixth Circuit, and Amy Coney Barrett, a judge on the Court of Appeals for the Seventh Circuit.
