A Tragedy of Novelty: Is For-Cause Removal Protection for the Consumer Financial Protection Bureau's Single Director a Fatal Flaw?

Abstract

On January 31, 2018, the en banc United States Court of Appeals for the District of Columbia Circuit held, in PHH Corp. v. Consumer Financial Protection Bureau, that the Consumer Financial Protection Bureau (“CFPB”) was permissibly organized under the Supreme Court’s removal power jurisprudence. In doing so, the court found that the CFPB’s structure, which provided the agency’s single director for-cause removal protection, did not impinge on the President’s powers under Article II of the U.S. Constitution. Nonetheless, the fate of the CFPB remains in doubt. The United States Court of Appeals for the Second Circuit has agreed to hear an appeal in Consumer Financial Protection Bureau v. RD Legal Funding, after the United States District Court for the Southern District of New York found that the CFPB was unconstitutionally structured, adopting, in toto, sections I–IV of then-Judge Kavanaugh’s PHH Corp. dissent. This Comment argues that then-Judge Kavanaugh’s dissenting opinion inappropriately supplants Congress’s judgment regarding the appropriate structure of the CFPB.