The Supreme Court is expected to vote later this week whether it will hear arguments in the case that ruled the funding mechanism for the Consumer Financial Protection Bureau is unconstitutional, while at the same time a published report details personnel changes at the Bureau that make it appear as though it is expecting the Supreme Court to greenlight the appeal while also preparing to deal with a more hostile Congress, especially within the House of Representatives.
The government filed a petition with the Supreme Court back in November after a ruling from the Court of Appeals for the Fifth Circuit in Consumer Financial Protection Bureau v. Community Financial Services Association of America et al. The ruling from the Fifth Circuit determined that how the CFPB is funded — through the Federal Reserve Board instead of through the Congressional appropriations process — is unconstitutional.
Whether this is any indication or not of what the Supreme Court will do or how it could rule if it does decide to hear arguments in the case, Chief Justice John Roberts has already expressed concerns about how the CFPB is funded. In the 2020 ruling that determined the CFPB’s leadership structure was unconstitutional, Justice Roberts wrote:
The CFPB’s receipt of funds outside the appropriations process further aggravates the agency’s threat to Presidential control. The President normally has the opportunity to recommend or veto spending bills that affect the operation of administrative agencies. And, for the past century, the President has annually submitted a proposed budget to Congress for approval. Presidents frequently use these budgetary tools “to influence the policies of independent agencies.” But no similar opportunity exists for the President to influence the CFPB Director. Instead, the Director receives over $500 million per year to fund the agency’s chosen priorities. And the Director receives that money from the Federal Reserve, which is itself funded outside of the annual appropriations process. This financial freedom makes it even more likely that the agency will “slip from the Executive’s control, and thus from that of the people.”
Meanwhile, the CFPB has added three attorneys to its general counsel’s office. Rebecca Deutsch will be deputy general counsel for law and policy, Steve Bressler will be deputy general counsel for litigation, and Jason Powell will serve as deputy general counsel for oversight, according to a published report. The CFPB has also hired Kelli Larkin to serve as staff director for the CFPB’s Office of Legislative Affairs. Larkin was most recently working for the House Budget Committee, but previously served as general counsel and legislative affairs chief to Democrats on the House Financial Services Committee.
