Constitutionalizing Financial Stability

Abstract

In the last Supreme Court term, the Court ruled in Seila Law LLC v. Consumer Financial Protection Bureau that Article II of the U.S. Constitution and separation of powers prohibit Congress from shielding the Bureau’s director from termination except for cause. Seila Law has natural implications for the CFPB’s independence (although the magnitude of that effect is unclear). More troubling, Seila Law could open up the financial system to destabilization by paving the path for a full-scale assault on the traditional independence of federal financial regulators and presidential manipulation of the economy.

Seila Law erodes independent agency protections in the worst possible way, by enshrining its ruling as constitutional command. The constitutional basis of that ruling ossifies the law on independent agency safeguards and means Congress and the president cannot overturn it. The decision further exposes the CFPB, and possibly other federal financial regulators, to political strong-arming to chase short-term gains at potential expense to long-term financial stability. In the process, Seila Law damages the important ballast of economic health that agency independence provides.