Supreme Court Nominee Ruled CFPB Structure 'Unconstitutional' in 2016

Judge Brett Kavanaugh, President Trump’s nominee to fill the U.S. Supreme Court seat opening as a result of the retirement of Justice Anthony Kennedy, has served on the U.S. Court of Appeals for the D.C. Circuit since 2006. In 2016, he wrote an opinion for a three-judge panel that found the Consumer Financial Protection Bureau (CFPB)’s single-director structure unconstitutional.

In the opinion, Kavanaugh argued that in lieu of a multi-person commission, the Bureau's director should at least be supervised and able to be fired at will by the president in order to increase accountability.

Kavanaugh's original opinion was overturned earlier this year by an en banc panel of the D.C. Circuit. However, there continues to be challenges in other courts. The U.S. Court of Appeals for the Fifth Circuit has agreed to hear a challenge to the Bureau's constitutionality brought by defendants accused by the Bureau of engaging in unfair payday lending conduct, and a federal judge in New York also recently ruled the Bureau's structure unconstitutional.

The Supreme Court could eventually take up the Bureau's constitutionality case to settle lower court differences.

CUNA and the state leagues continue to advocate for a commission structure at the Bureau to ensure long term continuity and stability in its policy-making.