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CFPB Petitions High Court to Consider Decision Holding Funding Structure Unconstitutional

BY: Sam Bragg

A&B Abstract:

On November 14, 2022, the Consumer Financial Protection Bureau (“CFPB”) filed a petition for a writ of certiorari in connection with the Fifth Circuit’s recent decision in Community Financial, which held that the CFPB’s funding structure violated the Constitution’s Appropriations Clause.  (For a full discussion of the Community Financial decision, click here.)

The CFPB is asking that the Supreme Court set the case for argument this term during its April 2023 sitting.

The CFPB’s Petition

According to the CFPB, the Fifth Circuit’s ruling constituted an “unprecedented and erroneous understanding of the Appropriations Clause.”  In the CFPB’s view, the Appropriations Clause requires only that “Congress enact[] a statute explicitly authorizing . . . [the] use [of] a specified amount of funds from a specified source for specified purposes,” which Congress did in establishing the CFPB’s funding.  For support, the CFPB relied on the constitutional text, historical practice, and the Supreme Court’s precedent.  And it argued that “[n]o other court has ever held that Congress violated the Appropriations Clause by passing a statute authorizing spending.”

The CFPB also asserts that the Fifth Circuit “compounded its error by adopting a sweeping remedial approach that calls into question virtually every action the CFPB has taken in the 12 years since it was created.”  This remedy, the CFPB argues, “raises grave concerns not just for the CFPB and consumers, but for the entire financial industry,” as the vacatur of past CFPB actions could have “destabilizing consequences.”

The CFPB asked the Supreme Court to review the Fifth Circuit’s decision for several reasons.  First, the Fifth Circuit held an Act of Congress violates the Constitution, and there is a strong presumption in favor of granting writs of certiorari to review decisions holding federal statutes unconstitutional.  Second, the Fifth Circuit’s decision conflicts with the D.C. Circuit’s decision on the same issue, creating a circuit split that the Supreme Court should resolve.  Third, the Fifth Circuit’s decision has “immense legal and practical significance” that should be addressed promptly because it “threatens the validity of all past CFPB actions,” which, if unwound, could result in harm to consumers and the “entire financial industry.”

For these reasons, the CFPB asked the Supreme Court to set the case for argument this term.   Given what is at stake, the CFPB explained that it filed its petition “less than one month after the [Fifth Circuit’s] decision,” and “plans to waive the 14-day waiting period after the brief in opposition is filed,” so that the Supreme Court may “consider the petition at its January 6, 2023 conference and hear the case during its April 2023 sitting.”


The CFPB has acknowledged the significant existential threat that the Fifth Circuit’s Community Financial decision poses to its future, and has petitioned the Supreme Court for relief.  Stay tuned for further updates on whether the Supreme Court grants the CFPB’s petition.

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