MONTH-IN-BRIEF (Feb 2020)
Additional Briefs Filed in Bureau Constitutionality Case
Eric Mogilnicki & Lucy Bartholomew, Covington & Burling LLP
On February 14, 2020, both petitioner Seila Law and respondent CFPB (through the Solicitor General’s office) filed reply briefs at the Supreme Court of the United States. Reflecting the unusual procedural posture of the case, both briefs argued that there is no barrier to the Court reaching the question of the constitutionality of the for-cause removal provision for the Director of the CFPB. Both briefs also reiterate the view that the for-cause removal provision is unconstitutional. However, the briefs differ in the remedy sought. The Solicitor General’s brief argues that the provision should be severed from the broader legislation, leaving the rest of the Bureau’s structure intact. Seila Law, however, argues that the entirety of Title X of the Dodd-Frank Act, which establishes the CFPB, should be invalidated.
Because both the Department of Justice and CFPB Director Kathleen L. Kraninger have taken the position that the provision is unconstitutional, the Supreme Court asked former United States Solicitor General Paul Clement to defend the constitutionality of the provision as an amicus curiae. The Supreme Court is set to hear oral argument in the case on March 3, 2020. Time for argument will be divided as follows: 20 minutes for petitioner Seila Law, 20 minutes for the Solicitor General, 20 minutes for the Court-appointed amicus curiae, and 10 minutes for the House of Representatives as amicus curiae arguing for the constitutionality of the provision.