Constitutionalizing Consumer Financial Protection: The Case for the Consumer Financial Protection Bureau

By Hosea H. Harvey. Full text here.

From its inception, the Consumer Financial Protection Bureau (CFPB) has been criticized in the court of public opinion for a host of reasons—mostly focused on the aggressive scope of its supervision, rulemaking, and enforcement actions. During the last several years, however, a new critique has emerged and gained traction—at least in federal courts. Defendants in CFPB enforcement actions began to routinely (and sometimes effectively) argue that the CFPB’s entire structure is unconstitutional. The CFPB faced its greatest constitutional crisis during the period from 2015 to 2018, when a D.C. Circuit case, PHH v. CFPB, threatened its structure, very existence, and—by extension—all of its prior enforcement actions. Though that case would ultimately be dismissed by the CFPB, questions about the CFPB’s constitutionality remain, even with 100 years of the Supreme Court’s key cases in executive power and agency independence behind us. This Article revisits this 100-year history, and then situates it against attacks upon the CFPB, finding that the CFPB’s design and structure stand on firm constitutional ground. However, the Article critiques the singular-director structure for other reasons and suggests improvements in order to improve the CFPB’s political—if not legal—standing for the future.