On October 4, 2019, the U.S. House of Representatives moved the Supreme Court for leave to file an amicus curiae brief in opposition to Seila Law’s petition for writ of certiorari to review the Ninth Circuit’s decision in CFPB v. Seila Law LLC, No. 7-56324 (9th Cir. 2019), which upheld the constitutionality of the Consumer Financial Protection Act’s (CFPA) for-cause removal provision applicable to the director of the Consumer Financial Protection Bureau (CFPB). See Seila Law LLC v. CFPB, No. 19-7. Although the deadline for amicus briefs had passed, the House noted that it received letters from the director, informing it of the CFPB’s new position that the single director structure is unconstitutional (as previously reported).
The House argued that on the same day it received these letters, the Solicitor General “urged [the Supreme] Court to grant review,” and because there was no party left to defend the constitutionality of the for-cause removal provision, asked the Supreme Court to “consider appointing an amicus curiae to defend the judgment of the court of appeals.” Thus, the House, believing that the case “presents an issue of significant importance,” filed its motion to defend the constitutionality of the for-cause removal protection, as consistent with Congress’ intention when it provided the CFPB director with “a measure of independence.”
Seila Law is not the first petitioner to request that the Supreme Court grant review of a circuit court’s decision to uphold the CFPB’s constitutionality. Thus far, the Supreme Court has declined to grant any writs to review the issue, with its more recent denial occurring in January of this year. We have yet to see if Congress’ wish to defend the CFPB’s constitutionality will sway the Supreme Court into granting writ of certiorari. While there is currently no circuit split, there are two pending CFPB constitutionality challenges in both the Second and Fifth Circuits that would be affected by the Supreme Court’s review. Should the Supreme Court decide to grant writ of certiorari, it may put this question to rest.