The DOJ submitted its amicus brief in the PHH case on Friday, March 17. We have blogged extensively about this case since its inception. Unsurprisingly, the Trump DOJ supports striking from Dodd-Frank the removal-only-for-cause protection currently applicable to the director of the CFPB. In its “view, the panel correctly applied severability principles and therefore properly struck down only the for-cause removal restrictions.” If the DOJ gets its way, the CFPB would remain intact with a director that President Trump can replace at any time.
While PHH likely appreciates the DOJ’s support, the DOJ is advocating a more limited remedial measure than PHH is seeking. As we’ve noted before, PHH is arguing in the case that the CFPB should be dismantled in its entirety because its “unprecedented independence from the elected branches of government violates the separation of powers” and because the CFPB’s “constitutional infirmities extend far beyond limiting the President’s removal power…the proper remedy is to strike down the agency in its entirety.” In sharp contrast, the Trump DOJ supports keeping the CFPB intact with a director removable at the will of the President.
Though the brief does not highlight the fact, the Trump DOJ has departed substantially from the position that the DOJ took under President Obama. The departure is most obvious in brief’s first footnote, where the DOJ notes that “[i]n one case filed against several federal agencies and departments . . ., [t]he [DOJ’s] district court briefs . . . argued that, based on the Supreme Court’s decision in Humphrey’s Executor, the CFPB’s for-cause removal provision is consistent with the Constitution.” However, the footnote goes on, “[a]fter reviewing the panel’s opinion here and further considering the issue, the [DOJ] has concluded that the better view is that the provision is unconstitutional.” The obviously political nature of the change makes it difficult to predict how the judges on the court will react to the DOJ’s brief.
Of course, the change at the DOJ is not reflected in the CFPB’s view, which is diametrically opposed to the DOJ’s. It’s rare that two executive agencies disagree so starkly and so publicly on an issue of such importance. This contrast only highlights the problems created by a federal agency headed by a single person that is not accountable to the president.