Supreme Court agrees to review constitutionality of CFPB’s funding, but not on an expedited basis
The Supreme Court granted the CFPB's request to review the U.S. Court of Appeals for the Fifth Circuit’s decision in Community Financial Services Association of America v. Consumer Financial Protection Bureau but so far has not expedited consideration of the case. Without quick action to expediate consideration by the Court, all CFPB actions will be open to challenge until the Supreme Court issues a decision. At the current pace, the CFPB could remain in this limbo until June of 2024.
In this case, the 5th Circuit held that Congress violated the Constitution’s Appropriations Clause when it created what that Court described as a “perpetual self-directed, double-insulated funding structure” for the agency. As a result, the CFPB’s 2017 Payday Lending Rule is invalid because the CFPB would not have been able to issue it “without its unconstitutional funding.” The implication, as the CFPB itself pointed out in its petition for certiorari, is that all past and future actions that relied on the same funding mechanism—basically everything the agency has ever done or will ever do—are invalid as well.
Although the CFPB had ninety days to seek review of the 5th Circuit’s decision, it took the unusual step of filing the petition in less than 30 days, and specifically urged the Supreme Court to “set this case for argument this Term,” to guarantee a decision by June or early July of this year. The Court’s order issued Monday simply states that the CFPB’s petition is granted, without setting an expediated briefing schedule. As a result, without the Court taking some immediate steps to speed up consideration, the case will be decided under the Court’s standard briefing schedule. This means the matter will be briefed over the next several months with oral argument likely next fall, as part of the Supreme Court’s October 2023 Term. Although a decision could come out any time after oral argument, cases as significant as this case often come out towards the end of the term, i.e., by June 2024.
The Supreme Court’s unwillingness to expedite consideration of the case to date has serious practical implications for the CFPB’s ability to push forward its ambitious agenda. As the CFPB has itself acknowledged, the 5th Circuit’s decision binds lower courts in that circuit unless and until it is overturned. It will likely encourage challenges to CFPB rulemakings and potentially other actions in that circuit. Even outside of the 5th Circuit, lower courts adjudicating CFPB enforcement actions may be unwilling to move those cases forward until the Supreme Court provides direction on this fundamental funding issue. Thus, for the time being, we can expect more challenges and more delays in CFPB enforcement actions.
For financial institutions, our advice remains the same as when the 5th Circuit’s decision was issued. Generally, companies should maintain their day-to-day focus on compliance, as the CFPB may weather this latest constitutional challenge with its full authority, including its enforcement power, intact. In addition, other Federal agencies—for example, the Federal banking agencies, the National Credit Union Administration, the Federal Trade Commission—and state attorneys general and/or state regulators often have overlapping authority to enforce Federal consumer financial law. Finally, companies should continue to assume that rules issued by the Bureau are valid and that they will not be penalized for good-faith reliance on such rules.