Today BG&A and O’Melveny & Myers filed an amicus brief in PHH v. CFPB challenging the unconstitutional structure of the CFPB. The case is now before the en banc D.C. Circuit following a panel decision that held the CFPB unconstitutional. The brief was filed on behalf of State National Bank of Big Spring, the 60 Plus Association, and the Competitive Enterprise Institute. BG&A and O’Melveny represented the amici in the panel proceeding as well.
The en banc amicus brief first argues that the Court cannot avoid the separation of powers questions presented by the case by deciding for PHH on statutory grounds. Among other reasons, the Court will inevitably have to confront the same constitutional questions in a separate challenge to the CFPB brought by State National Bank and its fellow amici. BG&A and O’Melveny represent the plaintiffs in that case, which is currently pending in the District Court.
On the merits, the brief argues that the CFPB enjoys an unprecedented level of independence from the political branches, combined with vast authority over the American economy. Because this combination of vast powers in an unaccountable agency violates the constitutional separation of powers, the Court must strike the CFPB in its entirety and permit Congress to restructure the agency in a constitutional manner.
The amicus brief is available here.