President Donald Trump’s nomination to the U.S. Supreme Court could help usher in changes to the structure of the Consumer Financial Protection Bureau, but is unlikely to put an end to the agency entirely, Chris Willis, partner for Ballard Spahr’s litigation and consumer financial services groups, told Auto Finance News.
Brett Kavanaugh, a D.C. Circuit judge, was nominated to serve as a justice on the court and, if confirmed, a case weighing in on the agency’s constitutionality is likely to reach the justices swiftly. While one district judge has expressed a desire to eliminate the agency, Kavanaugh’s D.C. Circuit Court decision in the 2016 PHH case did not.
Kavanaugh wrote a dissent against the majority that he would keep the agency alive, but would reform it such that the “director of the CFPB may be supervised, directed, and removed at will by the President,” Kavanaugh wrote.
As it stands now, the director may only be removed under “for cause” provisions. By contrast, Judge Loretta Preska in the District of New York also concluded that the agency was unconstitutional in a similar case, and expressed her dissenting opinion to call for the termination of the CFPB entirely.
“While Kavanaugh overall looks like he could be a more conservative judge than Justice Kennedy, on this particular issue he wasn’t exactly at the extreme fringes,” Justin Hosie, a partner with Hudson Cook LLP, told AFN.
