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A federal appeals court heard arguments Wednesday that could help determine the fate of the embattled Consumer Financial Protection Bureau and its director, Richard Cordray.
At stake is how the CFPB is structured and its ability to continue its mandate to safeguard the interests of ordinary consumers in their dealings with banks and other financial institutions.
The arguments before the 11 judges of the U.S. Court of Appeals in Washington, D.C., focused largely on the CFPB's constitutionality—in particular whether the bureau's structure limits presidential power.
The CFPB, which was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, is run by one director, who has a five-year term and can only be removed by the president for cause—that is, incompetence or malfeasance.
Theodore Olson, an attorney for financial services company PHH Corp., the plaintiff in the case, sued the CFPB in 2014. He argued Wednesday before six Democratic-appointed judges and five Republican-appointed judges that such a structure gives the CFPB director more power than was intended by framers of the Constitution.
"You have a concentration of power," Olsen told the judges. In creating the CFPB, he noted, "Congress itself understood and recognized that it was going further than it ever did before in limiting the President's power." A single director who cannot be dismissed without cause, and with a term that potentially outstrips that of the president, limits the chief executive’s authority, he maintained.
Supporters of the current CFPB structure say it does not limit presidential power, and further allows for the CFPB to protect consumers without politics getting in the way.
"If the president can remove an official at least for cause, the president has sufficient authority," argued Lawrence DeMille-Wagman, senior CFPB litigation counsel.
Many consumer groups agree. “The CFPB director needs to be independent from potential political pressure in order to be able to stand up for protecting the interests of consumers against the immense power of the financial industry,” said Pamela Banks, senior policy counsel for Consumers Union, the policy and mobilization arm of Consumer Reports. “The structure designed by Congress ensures that the director will be both independent and accountable.”
The original case that led to today’s hearing involves Laurel, N.J.-based PHH. In 2014, the CFPB charged the company with longtime violations of a federal lending law. PHH appealed the CFPB’s ruling within the bureau’s administrative law system, but lost its case and an appeal, and was ultimately fined a total of $109 million by the CFPB. It then sued the CFPB in federal court, claiming that Cordray, who had authority over the appeal process, wielded too much power.