Amicus Curiae Brief — Consumer Financial Protection Bureau, et al., Petitioners v. Community Financial Services Association of America, Limited, et al.

Supreme Court briefJul 10, 2023

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No. 22-448

IN THE

Supreme Court of the United States

CONSUMER FINANCIAL PROTECTION BUREAU, et al.,

Petitioners,

COMMUNITY FINANCIAL SERVICES ASSOCIATION OF

AMERICA, LIMITED, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA ET AL. IN SUPPORT OF

RESPONDENTS

JENNIFER B. DICKEY

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus

Curiae the Chamber of

Commerce of the United

States of America

CAMERON T. NORRIS

Counsel of Record

DAVID L. ROSENTHAL

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

cam@consovoymccarthy.com

Counsel for Amici Curiae

July 10, 2023

—Additional Amici Listed on the Inside Cover—

NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL

BUSINESS LEGAL CENTER, INC.

AMERICAN BANKERS ASSOCIATION

AMERICAN FINANCIAL SERVICES ASSOCIATION

CONSUMER BANKERS ASSOCIATION

INDEPENDENT COMMUNITY BANKERS OF AMERICA

INDEPENDENT BANKERS ASSOCIATION OF TEXAS

TEXAS ASSOCIATION OF BUSINESS

TEXAS BANKERS ASSOCIATION

LONGVIEW CHAMBER OF COMMERCE

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 5

ARGUMENT .............................................................. 10

The Bureau’s funding mechanism violates

the Constitution. ................................................. 10

A. The Fifth Circuit’s decision is correct. ......... 11

B. The Bureau’s short history confirms the

importance

the

constitutional

safeguards enforced below............................ 14

II. A decision affirming the judgment below will

provide targeted, but meaningful, relief for

those subject to the CFPB................................... 19

A. The Bureau is an agency like no other. ....... 20

1. The Bureau’s funding mechanism is

unique. ..................................................... 20

2. The Bureau’s vast authority makes it

unique. ..................................................... 23

III. The Court can mitigate disruptions in the

marketplace by crafting a narrow remedy. ........ 26

CONCLUSION .......................................................... 30

TABLE OF AUTHORITIES

Cases

Axon Enterprise, Inc. v. FTC,

598 U.S. __ (2023) .................................................. 29

Bohon v. FERC,

143 S. Ct. 1779 (2023) ............................................ 29

CFPB v. Accrediting Council for Indep. Colleges &

Schs., 854 F.3d 683 (D.C. Cir. 2017) ..................... 15

CFPB v. All Am. Check Cashing, Inc.,

33 F. 4th 218 (5th Cir. 2022) ................................. 26

CFPB v. Brown,

2023 WL 3939432 (11th Cir. June 12) .................. 14

CFPB v. Fifth Third Bank,

No. 21-cv-262 (S.D. Ohio) ...................................... 15

CFPB v. MoneyGram Int’l, Inc.,

2022 WL 17547438 (S.D.N.Y. Dec. 9, 2022) .......... 16

CFPB v. Source for Pub. Data,

903 F.3d 456 (5th Cir. 2018) .................................. 15

CFPB v. TransUnion,

2023 WL 3605995 (N.D. Ill. Apr. 13, 2023) ........... 16

Chamber of Commerce v. CFPB,

No. 22-cv-381 (E.D. Tex. Sept. 28, 2022)............... 17

Cmty. Fin. Servs. Ass’n of Am., Ltd. v. CFPB,

51 F.4th 616 (5th Cir. 2022) .......................... 6, 7, 13

Collins v. Yellen,

141 S. Ct. 1761 (2021) ............................................ 13

Free Enter. Fund v. PCAOB,

537 F.3d 667 (D.C. Cir. 2008) .................................. 7

iii

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) .................................................. 7

INS v. Chadha,

462 U.S. 919 (1983) ................................................ 11

Lucia v. SEC,

138 S. Ct. 2044 (2018) ...................................... 28, 29

Massachusetts v. Mellon,

262 U.S. 447 (1923) .................................................. 8

Nguyen v. United States,

539 U.S. 69 (2003) .................................................. 29

NLRB v. Gestamp S.C. LLC,

573 U.S. 957 (2014) ................................................ 29

NLRB v. Noel Canning,

573 U.S. 513 (2014) .................................... 11, 28, 29

OPM v. Richmond,

496 U.S. 414 (1990) ................................................ 11

PHH Corp. v. CFPB,

839 F.3d 1 (D.C. Cir. 2016) .................................... 17

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) .................................. 16

Polaris Innovations Ltd. v. Kingston Tech. Co. Inc.,

141 S. Ct. 2844 (2021) ............................................ 29

Ryder v. United States,

515 U.S. 177 (1995) ................................................ 29

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ............................................ 12

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) .................. 5, 9, 17, 24, 26, 29

Stern v. Marshall,

564 U.S. 462 (2011) ................................................ 28

Tex. Bankers Ass’n v. CFPB,

No: 7:23-cv-144 (S.D. Tex. June 23, 2023) ............ 18

U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) .............................. 11

United States v. Arthrex, Inc.,

141 S. Ct. 1970 (2021) ............................................ 29

United States v. McIntosh,

833 F.3d 1163 (9th Cir. 2016) ................................ 11

Statutes

5 U.S.C. §706 ............................................................. 13

12 U.S.C. §1 ............................................................... 24

12 U.S.C. §14 ............................................................. 21

12 U.S.C. §16 ............................................................. 21

12 U.S.C. §1752a ................................................. 21, 24

12 U.S.C. §1755 ......................................................... 21

12 U.S.C. §1811 ......................................................... 24

12 U.S.C. §1814 ......................................................... 21

12 U.S.C. §1820 ......................................................... 21

12 U.S.C. §2250 ......................................................... 22

12 U.S.C. §2252 ......................................................... 24

12 U.S.C. §243 ............................................................. 6

12 U.S.C. §4516 ......................................................... 22

12 U.S.C. §5481 ........................................................... 5

12 U.S.C. §5491 ......................................................... 24

12 U.S.C. §5497 ............................................... 6, 12, 27

12 U.S.C. §5531 ........................................................... 5

12 U.S.C. §5563 ......................................................... 30

12 U.S.C. §5581 ........................................................... 5

12. U.S.C. §1827 ........................................................ 21

15 U.S.C. §2051 ......................................................... 25

15 U.S.C. §2053 ......................................................... 25

28 U.S.C. §2401 ......................................................... 30

31 U.S.C. §401 ........................................................... 22

Pub. L. 117–328 ......................................................... 21

Constitutional Provisions

U.S. Const. art. I, §9 .................................................... 6

Regulations

12 C.F.R. §1081.......................................................... 16

Other Authorities

2022 Annual Report, OCC, (2022) ............................ 22

2023 OASDI Trustees Report (Mar. 31, 2023) ......... 23

2023 Performance Budget Request to Congress,

CPSC (Mar. 28, 2022) ............................................ 25

CFPB Financial Report: Fiscal Year 2022 (2022) .... 13

Federalist No. 48 ....................................................... 11

Federalist No. 58 ....................................................... 11

Federalist No. 78 ....................................................... 11

Fiscal Year 2024 Congressional Budget Justification,

FTC (Mar. 13, 2023) ............................................... 25

FY 2024 Congressional Budget Justification, SEC

(Mar. 13, 2023) ....................................................... 25

H.R. 1382, 118th Cong. §3 (2023) ................................ 8

Letter from Daryl Joseffer to Director Chopra (June

28, 2022) ................................................................. 18

Luetkemeyer on Fifth Circuit Ruling CFPB Funding

Structure is Unconstitutional (Oct. 20, 2022) ....... 18

McHenry Applauds 5th Circuit Decision Ruling

CFPB Funding Mechanism Unconstitutional (Oct.

19, 2022) ................................................................. 18

PHH Corp., CFPB No. 2014-CFPB-0002 (June 7,

2018) ....................................................................... 17

S. 5280, 117th Cong. §3 (2022) ..................................... 8

S. Rep. No. 111-176 (2010) ........................................ 13

Semi-Annual Report of the CFPB, CFPB (June 8,

2023) ....................................................................... 22

Warren, Product Safety Regulation as a Model for

Financial Services Regulation, 42 J. Consumer Aff.

452, 453 (2008) ....................................................... 25

INTEREST OF AMICI CURIAE 1

Amici curiae are the Chamber of Commerce of the

United States of America, National Federation of Independent Business Small Business Legal Center,

Inc., American Bankers Association, American Financial Services Association, Consumer Bankers Association, Independent Community Bankers of America,

Independent Bankers Association of Texas, Texas Association of Business, Texas Bankers Association, and

Longview Chamber of Commerce.

The Chamber of Commerce of the United States of

America is the world’s largest business federation.

The Chamber represents approximately 300,000 direct members and indirectly represents the interests

of more than three million businesses and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the Executive Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases, like this

one, that raise issues of concern to the business community.

The Chamber’s members include numerous financial institutions, financial services companies, and

1 Under this Court’s Rule 37.6, counsel for amici curiae cer-

tify that this brief was not authored in whole or in part by counsel

for any party and that no person or entity other than amici curiae

or its counsel has made a monetary contribution to the preparation or submission of this brief. Counsel notified the parties of

their intended filing on June 16, 2023.

many other businesses subject to the regulatory and

enforcement authority of the Consumer Financial Protection Bureau. The Chamber’s members have a

strong interest in ensuring that the Bureau’s funding

mechanism comports with the Constitution.

The National Federation of Independent Business

Small Business Legal Center, Inc. is a nonprofit, public-interest law firm established to provide legal resources and be the voice for small businesses in the

nation’s courts through representation on issues of

public interest affecting small businesses. The NFIB

Legal Center is an affiliate of the National Federation

of Independent Business, Inc., which is the nation’s

leading small business association. NFIB’s mission is

to promote and protect the right of its members to

own, operate, and grow their businesses. NFIB represents, in Washington, D.C., and all 50 state capitals,

the interests of its members.

The American Bankers Association is the voice of

the nation’s $23.7 trillion banking industry, which is

composed of small, regional and large banks that together employ more than 2 million people, safeguard

$19.6 trillion in deposits and extend $11.8 trillion in

loans. The ABA advocates for banks before Congress,

regulatory agencies and the courts to drive pro-growth

policies that help customers, clients, and communities

thrive.

Founded in 1916, the American Financial Services

Association is the national trade association for the

consumer credit industry, protecting access to credit

and consumer choice. AFSA members provide consumers with many kinds of credit, including traditional installment loans, mortgages, direct and indirect vehicle

financing, payment cards, and retail sales finance.

The Consumer Bankers Association is the only national trade association focused exclusively on retail

banking. Established in 1919, the CBA is a leading

voice in the banking industry and Washington, representing members who employ nearly two million

Americans, extend roughly $3 trillion in consumer

loans, and provide $270 billion in small business

loans. Part of its mission includes representing its

members interests in various government settings.

The Independent Community Bankers of America

creates and promotes an environment where community banks flourish. ICBA is dedicated exclusively to

representing the interests of the community banking

industry and its membership through effective advocacy, best-in-class education, and high-quality products and services. With nearly 50,000 locations nationwide, community banks employ nearly 700,000 Americans and are the only physical banking presence in

one in three U.S. counties. Holding $5.8 trillion in assets, $4.8 trillion in deposits, and $3.8 trillion in loans

to consumers, small businesses, and the agricultural

community, community banks channel local deposits

into the Main Streets and neighborhoods they serve,

spurring job creation, fostering innovation, and fueling their customers’ dreams in communities throughout America.

Independent Bankers Association of Texas is the

largest state community banking organization in the

nation, with membership comprised of more than

2,000 banks and branches in 700 Texas communities.

Providing safe and responsible financial services to all

Texans, IBAT member-bank assets range in size from

$27 million to $39 billion with combined assets

statewide of nearly $256 billion. IBAT member banks

are committed to supporting and investing in their local communities. IBAT advocates for and represents

the interests of its members in various settings.

Texas Association of Business is the largest general business association in the state as well as the

Texas State Chamber of Commerce. TAB represents

member companies, large and small, to create a policy,

legal, and regulatory environment that allows them to

thrive in business.

Texas Bankers Association is America’s oldest and

largest state banking organization. TBA advocates for

400 member banks in Austin and Washington and invests in Texas communities through financial literacy,

scholarship, and charitable activities. TBA has a

member median asset size of approximately $357 million, and its banks employ over 150,000 Texans. TBA

is dedicated to representing Texas community banks

as well as institutions of all sizes and charter types

before the Texas Legislature, U.S. Congress, state and

federal regulatory agencies, and, when necessary, the

courts.

Longview Chamber of Commerce is a voluntary

representative organization of business and professionals who have joined together for the betterment of

business, development of tourism, development of

downtown Longview potential, and the overall quality

of life in Longview.

SUMMARY OF ARGUMENT

The Bureau’s funding scheme is historically

unique—and unconstitutional.

The Bureau is endowed with “vast authority.”

Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2210 (2020).

Its jurisdiction encompasses not only consumer financial-services companies, but also individuals and businesses that engage in any of ten specified consumer

financial activities that are common throughout the

economy. Far beyond the authority that discrete financial regulators enjoy, the Bureau’s authority spans

the entire market. See 12 U.S.C. §5481(6). In addition,

Congress transferred to the Bureau rulemaking authority with respect to eighteen federal laws, §5581(b);

and also endowed the Bureau with new authority to

declare unlawful any “unfair, deceptive or abusive acts

or practices.” §5531(b). Finally, the Bureau has wideranging enforcement power—to conduct investigations, institute and adjudicate administrative proceedings, file enforcement actions in court, and seek

myriad forms of relief, including civil penalties of up

to $1 million per day.

All this government power is “double-insulated”

from the constitutionally-mandated check of Congress’s purse, lacking accountability to Congress or

the people themselves. Cmty. Fin. Servs. Ass’n of Am.,

Ltd. v. CFPB, 51 F.4th 616, 640 (5th Cir. 2022). While

most executive agencies are subject to some level of

budgetary oversight through Congress’s annual appropriations process, the Bureau is “expressly exempt

from budgetary review.” Id. Instead, all the Bureau

must do to secure funds is requisition from the Federal

Reserve an amount “determined by the Director to be

reasonably necessary to carry out” its functions. Id. at

638. This funding mechanism removes Congress from

the process by siphoning funds directly from the Federal Reserve (an agency that is also funded outside the

appropriations process). 12 U.S.C. §5497(a)(1); see also

§243 (Federal Reserve draws funds from banks within

the Federal Reserve System, but must remit funds

above a statutory limit to the U.S. Treasury).

Although not every agency must receive funds

through the typical process, the Bureau’s historically

unique level of budgetary independence “is the epitome

of the unification of the purse and the sword in the executive.” Cmty. Fin., 51 F.4th at 640. No other

agency—let alone one with the vast authority of the

Bureau—has funding so insulated from congressional

oversight and the entities and people it regulates. No

other agency’s spending is so disconnected from laws

passed by Congress. At bottom, the Bureau’s funding

structure violates the Appropriations Clause’s command that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by

Law.” U.S. Const. art. I, §9, cl. 7.

To be sure, some other agencies that regulate the

financial-services industry draw their funds from the

entities they regulate and other sources outside the

typical appropriations process. See Pet. Br. 29-36 (addressing the funding mechanisms for the Federal Reserve, OCC, and FDIC, just to name a few). Yet, the

“Bureau’s perpetual self-directed, double-insulated

funding structure goes a significant step further than

that enjoyed by the other agencies on offer.” Cmty.

Fin., 51 F.4th at 641. And, as the Fifth Circuit observed, none of the agencies that Petitioners cite as

comparators “wield enforcement or regulatory authority remotely comparable to the authority the Bureau

may exercise throughout the economy.” Id. (cleaned

up). The Bureau’s lack of accountability to Congress or

to the people thus makes it unique even among its

peers and clearly differentiates its funding mechanism from anything that could be understood as “in

consequence of Appropriations made by law.” Cf. Free

Enter. Fund v. PCAOB, 561 U.S. 477, 505 (2010) (“Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity.” (quoting Free Enter.

Fund v. PCAOB, 537 F.3d 667, 699 (D.C. Cir. 2008)

(Kavanaugh, J., dissenting))).

Given its power and its insulation from congressional oversight, it is no surprise that the Bureau often oversteps its bounds. Recent examples of the Bureau’s actions highlight the need for the Appropriations Clause’s check on a particularly powerful

agency. Indeed, that kind of oversight of executive

power is precisely why the Founders gave Congress

the power of the purse in the first place.

Remedying the constitutional problem here is thus

important, and amici believe it can be done in an appropriate way. The judgment below vacates a single

Bureau regulation that has never gone into effect. And

there are relatively few other cases that raise the matter—typically cases where the harm of the unified appropriations and executive power is most evident. This

Court can thus afford meaningful relief without significant disruption. Most simply, the Court could sever

the offending funding provision and provide Congress

with an opportunity to fix an otherwise unchallenged

statutory scheme. Other financial regulators need not

and should not be affected by such a decision because

they do not enjoy the same level of unprecedented

budgetary independence as the Bureau.

This Court also has discretionary tools at its disposal to temper the impact of its decision. For instance, were the Court concerned with upsetting the

Bureau’s ongoing activities—which have thus far been

largely unaffected by the Fifth Circuit’s decision—the

Court could stay its mandate for a brief period to allow

Congress to act. In fact, the House Financial Services

Committee has already reported legislation favorably

that would fund the agency through annual appropriations. H.R. 1382, 118th Cong. §3 (2023); see also S.

5280, 117th Cong. §3 (2022) (recent Senate consideration of the same).

Although such a stay of this Court’s mandate

would be unusual, it would address an unusual separation-of-powers problem. While this Court has “the

negative power to disregard an unconstitutional enactment,” Massachusetts v. Mellon, 262 U.S. 447, 488

(1923), it “cannot re-write Congress’s work,” Seila

Law, 140 S.Ct. at 2211. Such “editorial freedom belongs to the Legislature, not the Judiciary.” Id. (quoting Free Enter. Fund, 561 U.S. at 510; cleaned up).

And in the unique circumstances here, where the

Court would be recognizing that an existing agency’s

funding mechanism is unconstitutional, this Court

would show due respect for a co-equal branch by giving

Congress time to correct its error. At the same time,

providing a defined period of time is necessary to avoid

subjecting the people’s rights to the whims of a single

branch. The people formed a Union with important

checks on its political branches, and those checks cannot be sidelined for long.

To that end, the Court should consider clarifying

how the Bureau can continue carrying on its mission

in regulating consumer financial activities. For example, the Court could clarify that meaningful relief for

those who have raised the funding mechanism’s infirmity in litigation requires the Bureau to reconsider

certain actions once constitutionally funded. At the

same time, the Court could remove any shroud of uncertainty for the Bureau and for regulated industry by

noting that a combination of procedural and equitable

doctrines, as well as the statute of limitations, insulate much of the Bureau’s previous activities from future challenge. While it would have been better to

have avoided this constitutional problem in the first

place, an appropriate constitutional fix now is better

than allowing it to persist.

In sum, this Court should feel no hesitation about

providing the limited, but meaningful, relief that our

Constitution calls for here.

ARGUMENT

The Bureau’s unprecedented funding mechanism

violates the Constitution’s structural protections embodied in its separation of powers. As the Fifth Circuit

correctly held, such a powerful agency cannot be doubly insulated from the congressional appropriations

process. Indeed, the Bureau’s aggressive enforcement

and regulatory tactics highlight the need for the constitutional accountability that the Appropriations

Clause provides. Although the Bureau would lead this

Court to believe otherwise, its funding mechanism is

unprecedented among financial regulators, which do

not have nearly the same reach or powers. So this

Court’s decision can be narrowly limited to this unique

agency. In fact, the Court has several tools at its disposal to craft an appropriate and meaningful remedy

without disrupting the nation’s financial regulatory

apparatus.

I. The Bureau’s funding mechanism violates

the Constitution.

The Bureau’s unprecedented funding mechanism

violates the Constitution’s structural protections embodied in the separation of powers generally and the

Appropriations Clause specifically.

A. The Fifth Circuit’s decision is correct.

The Framers made sure to separate the “purse”

from the “sword” by vesting the power of the purse exclusively in the legislative branch. Federalist Nos. 78

(Alexander Hamilton), 58 (James Madison). They did

so in part because “the legislative department alone

has access to the pockets of the people.” Federalist No.

48 (James Madison). The Appropriations Clause carries out the Framers’ “straightforward and explicit

command” that executive agencies remain accountable to the people through Congress’s control over the

purse strings. OPM v. Richmond, 496 U.S. 414, 424

(1990). Importantly, the Appropriations Clause ensures that “[a]ny exercise of a power granted by the

Constitution to one of the other branches of Government is limited by a valid reservation of congressional

control over funds in the Treasury.” Id. at 425.

Courts across the country have recognized the

clause’s role as “a bulwark of the Constitution’s separation of powers.” U.S. Dep’t of Navy v. Fed. Lab. Rels.

Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.); see also United States v. McIntosh, 833

F.3d 1163, 1175 (9th Cir. 2016) (“The Appropriations

Clause plays a critical role in the Constitution’s separation of powers among the three branches of government and the checks and balances between them.”).

The clause’s importance undoubtedly “reflect[s] ‘hard

choices … consciously made by men who had lived under a form of government that permitted arbitrary

governmental acts to go unchecked.’” NLRB v. Noel

Canning, 573 U.S. 513, 601-02 (2014) (Scalia, J., concurring) (quoting INS v. Chadha, 462 U.S. 919, 959

(1983)). To give it anything less than full effect would

ignore the Framers’ careful construction of our Constitution and this all-important check on executive overreach.

On the merits, the Fifth Circuit’s decision is correct. The Bureau’s funding statute makes clear that

its regular funding is not “subject to review” by congressional appropriations committees. 12 U.S.C.

§5497(a)(2)(C). Instead, the statute states that

“[f]unds obtained by or transferred to the Bureau

Fund shall not be construed to be Government funds

or appropriated monies.” §5497(c)(2). Although another section outlines a separate process for the

“[a]uthorization of appropriations” if the Bureau requests more than 12% of the Federal Reserve’s operating costs for its budget, the Bureau has never sought

or received any such funds. §5497(e). So Congress

made clear that the Bureau’s ordinary operating

budget cannot be treated as an appropriation. And the

Fifth Circuit rightly considered the force of the statute

that allows the Bureau to receive funds first from the

Federal Reserve. See SAS Inst., Inc. v. Iancu, 138 S.

Ct. 1348, 1359 (2018) (“Our duty is to give effect to the

text that 535 actual legislators (plus one President)

enacted into law.”). Without evidence to the contrary,

the Fifth Circuit was correct to give effect to Congress’s definitional statement on how it categorizes

these funds: not “appropriated monies.”

That the Bureau has spent billions and billions of

dollars without even a rubberstamp of its budget by

Congress demonstrates the significance of this issue.

Far from denying this constitutional bug, the Bureau’s

supporters have championed it as a feature. See, e.g.,

S. Rep. No. 111-176, at 163 (2010) (congressional supporters claimed that “the assurance of adequate funding, independent of the Congressional appropriations

process,” was “absolutely essential” for the Bureau);

CFPB Financial Report: Fiscal Year 2022, at 38

(2022), perma.cc/GA5F-49E7 (championing the Bureau’s autonomy as “an independent, non-appropriated bureau”). These concessions that the Bureau obtains its operating budget doubly insulated from the

constitutionally-mandated appropriations process

should doom its case on the merits.

That leaves the Bureau to quibble only on the appropriate remedy. See Pet. Br. 38-41. Yet the Fifth Circuit’s rule is artfully simple: no money, no power. And

the Fifth Circuit appropriately limited the remedy to

vacatur of the challenged rule in this case. See Cmty.

Fin., 51 F.4th at 643 (finding “a linear nexus between

the infirm provision (the Bureau’s funding mechanism) and the challenged action (promulgation of the

rule)”). Without any construction to save the challenged rule or alternative argument to provide constitutional funding without a legislative fix, the Fifth

Circuit approved the narrow remedy commonly issued

in a challenge to an unlawfully promulgated agency

action: vacatur. See Collins v. Yellen, 141 S. Ct. 1761,

1801 (2021) (Kagan, J., concurring in part) (opining

that the appropriate remedy is “a rewinding of agency

action”); 5 U.S.C. §706(2)(A) (stating that, under the

APA, a “reviewing court shall … hold unlawful and set

aside agency action … found to be … not in accordance

with law”). Upon determining that the Bureau promulgated the rule in violation of the Appropriations

Clause—and without any legislative action to cure the

constitutional defect—the Fifth Circuit was correct to

vacate that rule.

B. The Bureau’s short history confirms the

importance of the constitutional

safeguards enforced below.

Without adequate congressional oversight, the

Bureau has predictably exceeded its boundaries. In its

twelve short years of existence, the Bureau has a track

record of overreach to the detriment of industry and

consumers alike. Just a few examples underscore the

need for additional oversight:

Last month, the Eleventh Circuit affirmed a sanctions order against the Bureau for its “willful disregard” of a district court’s discovery orders in an enforcement action. CFPB v. Brown, 2023 WL 3939432,

at *5 (11th Cir. June 12, 2023). As an example, the

CFPB tried at length to avoid providing a Rule 30(b)(6)

representative, and then when it finally provided one,

“equipped its witness with so-called ‘memory aids’

from which the witness read verbatim for extended periods of time.” Id. at *6. According to the Court, in response to one question, “the witness read from his

memory aid for more than 40 minutes and then, after

a break, continued reading for 18 minutes before the

parties stipulated that he would have read another 93

pages.” Id. The Eleventh Circuit agreed with the district court that “severe sanctions were warranted” for

the Bureau’s conduct and affirmed the dismissal of

five defendants from the case. Id. at *8.

This aggressive conduct is not an isolated incident.

Multiple circuit courts have intervened when the

CFPB has issued civil investigative demands so broad

that they would have “effectively writ[ten] out of the

statute all of the notice requirements that Congress

put in.” CFPB v. Accrediting Council for Indep. Colleges & Schs., 854 F.3d 683, 692 (D.C. Cir. 2017); see

also CFPB v. Source for Pub. Data, 903 F.3d 456, 45960 (5th Cir. 2018) (“Simply put, the CFPB does not

have unfettered authority to cast about for potential

wrongdoing.”).

In March 2022, a district court had to get involved

when the Bureau emailed more than 18,000 of Fifth

Third Bank’s customers seeking information to support a pending enforcement action, without notice to

the court or the bank. See Resp., CFPB v. Fifth Third

Bank, Nat’l Ass’n, No. 21-cv-262, Dkt. 108 at 11 (S.D.

Ohio Apr. 6, 2022). The Bureau did so even though the

parties, in discussion with the court, had agreed to

more narrow discovery and despite the many precedents where courts have facilitated any communication between a plaintiff and a defendant’s customers.

Id. at 8-11. Indeed, the Bureau did so even though a

third-party consulting firm had reviewed the bank’s

operations and concluded the problem the CFPB had

been investigating was isolated to just 800 out of 10

million accounts. Am. Answer, CFPB v. Fifth Third

Bank, Nat’l Ass’n, No. 21-cv-262, Dkt. 80 at 3 (S.D.

Ohio July 9, 2021). Although the CFPB voluntarily

discontinued its mass email after Fifth Third sought

relief from the court, the harm to customer goodwill

caused by such aggressive enforcement activities cannot be undone.

Notably, the Fifth Circuit’s well-reasoned opinion

in this matter has not slowed the CFPB’s enforcement

agenda. It has refused to agree to stays of existing enforcement actions where the party has raised the funding issue as a basis for relief. See, e.g., CFPB v.

TransUnion, 2023 WL 3605995, at *2 (N.D. Ill. Apr.

13, 2023) (denying opposed motion for stay of enforcement action pending this Court’s decision); CFPB v.

MoneyGram Int’l, Inc., 2022 WL 17547438, at *2

(S.D.N.Y. Dec. 9, 2022) (granting stay over the Bureau’s objection and noting that “[t]he fact that the

CFPB and the Solicitor General cite the instant case

within the Petition only underscores the propriety of a

stay here”). And it has continued to launch new enforcement actions and issue enforcement orders.

Moreover, the Bureau has announced its intention to

pursue adjudications, including adjudications of private rights, in its own administrative processes rather

than in courts. See 12 C.F.R. §1081, Rules of Practice

for Adjudication Proceedings. Despite a groundswell of

industry comments opposing the Bureau’s proposed

rulemaking, it nevertheless declined to make any

amendments before finalizing the rule.

Lest the Court think these overaggressive tactics

are a recent trend, the Bureau has a long history of

being reined in by courts. In 2014, an administrative

law judge imposed penalties of $6.4 million for PHH

Corporation’s alleged violation of the Real Estate Settlement Procedures Act. Upon review of the order,

then-Director Cordray “unilaterally added $103 million to the $6 million in penalties”—increasing the fine

by twentyfold. PHH Corp. v. CFPB, 881 F.3d 75, 185

n.13 (D.C. Cir. 2018) (Kavanaugh, J., dissenting), abrogated by Seila Law, 140 S. Ct. 2183. To do so, thenJudge Kavanaugh explained that “[t]he Director discarded the Government’s longstanding interpretation

of the relevant statute, adopted a new interpretation

of that statute, applied that new interpretation retroactively, and then imposed massive sanctions on PHH

for violation of the statute—even though PHH’s relevant acts occurred before the Director changed his interpretation of the statute.” Id. The D.C. Circuit rejected those decisions, PHH Corp. v. CFPB, 839 F.3d 1

(D.C. Cir. 2016), reinstated by 881 F.3d 75, 83 (D.C.

Cir. 2017) (en banc), even before this Court ultimately

held that the Bureau’s structure violated the separation of powers, Seila Law, 140 S.Ct. at 2197. Thus, the

Bureau was forced to reverse course and dismiss the

notice of charges against PHH because “PHH did not

violate RESPA” after all. In re PHH Corp., No. 2014CFPB-0002 (CFPB June 7, 2018).

Some of the amici have also raised concerns about

aggressive actions by the Bureau in other areas, including agency rulemaking, interpreting existing law,

and interpreting its own authority. Notably, several of

the amici have a pending lawsuit, arguing that the

Bureau exceeded its statutory authority in reinterpreting its authority to pursue unfair, deceptive, or

abusive acts or practices to subject industry to disparate-impact liability. See Compl., Chamber of Commerce v. CFPB, No. 22-cv-381, Dkt. 1 at 2 (E.D. Tex.

Sept. 28, 2022). The Chamber also objected when the

Bureau sidestepped the traditional hiring process to

hire political loyalists through a novel “Policy Fellow-

ship.” See Letter from Daryl Joseffer to Director Chopra at 2 (June 28, 2022), perma.cc/GA8Z-9NTE

(“Members of the House Committee on Financial Services detailed why this program is misguided—opening the door to all manner of favoritism and ideologically driven personnel selection and mismanagement,

as well as conflicts of interest.”). Other amici have another pending lawsuit, arguing that the Bureau’s

March 2023 finalization of the small business data collection specified under section 1071 of Dodd-Frank

was, as a consequence of the Fifth Circuit’s decision

here, unlawfully promulgated. Reply, Tex. Bankers

Ass’n v. CFPB, No. 7:23-cv-144, Dkt. 17 (S.D. Tex.

June 23, 2023).

Each of these examples is unsurprising when one

considers the aggregation of appropriations and executive power in the agency’s hands. In fact, members of

Congress have realized exactly this problem in their

comments following the Fifth Circuit’s ruling. E.g.,

McHenry Applauds 5th Circuit Decision Ruling CFPB

Funding Mechanism Unconstitutional (Oct. 19, 2022),

perma.cc/AEQ6-96CW; see also Luetkemeyer on Fifth

Circuit Ruling CFPB Funding Structure is Unconstitutional (Oct. 20, 2022), perma.cc/6MH2-ZHY7

(“Bringing the CFPB under the appropriations process

would make it more accountable to the American people through their elected representatives. The Financial Services Committee must consider [pending legislation] immediately to give the Bureau certainty regarding its funding.”). By enforcing the Appropriations Clause’s requirements, the Court will add an essential check on the Bureau that is sorely lacking.

II. A decision affirming the judgment below

will provide targeted, but meaningful, relief

for those subject to the CFPB.

Setting aside the Bureau’s hyperbole about “catastrophic” results, Pet. Br. 48, affirming the Fifth Circuit will not force the nation’s financial regulatory apparatus to crumble. Indeed, amici represent many of

the members who depend on this apparatus and have

no wish to affect it in that way. Rather, amici seek targeted but meaningful relief from the Bureau’s unprecedented, lack of accountability for its funding to either

Congress or the people, which, combined with its vast

regulatory power, makes it an agency like no other.

Because the Bureau’s unique features, this Court can

provide targeted but meaningful relief, without disrupting the nation’s other financial regulatory bodies.

This outcome will not cause dramatic upheaval and

will ultimately leave the CFPB better than this Court

found it.

Contrary to Amici States’ suggestion in support of

the Bureau, Respondents’ interest—and that of industry as a whole—in ensuring the Bureau is constitutionally funded is not “remote, fluctuating, and uncertain.” Amici States’ Br. 25. Regulated industry has an

ongoing interest in constitutional checks on its regulator. With their private rights and businesses on the

line, they have an interest in not being subjected to an

agency that effectively combines the spending power

of Congress with the executive power. Such an accumulation of power can lead to constitutional mischief

that has real consequences for the regulated. And such

an improper commingling of the sword and the purse

into a single agency with a lack of accountability to either Congress or the people sets the Bureau apart and

demonstrates industry’s need for narrow, but meaningful relief.

A. The Bureau is an agency like no other.

The Bureau would have the Court believe that its

level of budgetary independence is on the same level

as the Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, National Credit

Union Administration, Farm Credit Administration,

and Federal Housing Finance Agency. Pet. Br. 12. Although the Bureau claims to regulate the financial industry, that is where the similarities with those agencies end. The Bureau is more like market regulators

like the Consumer Product Safety Commission, Federal Trade Commission, Securities and Exchange

Commission, and Commodity Futures Trading Commission, none of whom share the Bureau’s unique

funding structure. But even the more traditional

banking regulators are easily distinguished from the

Bureau because of its unique lack of accountability for

its funding and the vast authority it wields.

1. The Bureau’s funding mechanism is

unique.

None of the Bureau’s preferred comparators receive funds from another agency that is itself immune

from the appropriations process. That alone distinguishes the Bureau from every other financial regulator.

The other regulators also draw funds from the industry they regulate, which provides a layer of accountability to the people that is absent from the Bureau. For instance, the Office of the Comptroller of the

Currency is mainly funded by fees assessed to nationally chartered banks with carefully crafted criteria to

guide how it assesses them. 12 U.S.C. §16. The OCC

is also a bureau of the Department of the Treasury,

which is funded directly through the congressional appropriations process. See Pub. L. 117–328 (appropriating $14.2 billion to the Treasury Department for fiscal

year 2023). And the OCC must make a statutorily-required annual report to Congress with a detailed

budgetary breakdown and justification. 12 U.S.C. §14.

Similarly, the FDIC and NCUA are self-funded

through operating fees that they levy against the financial institutions they insure and regulate.

§§1814(d), 1820(e) (FDIC); §1755(a) (NCUA). Notably,

the NCUA must deposit all operating fees it collects

into the U.S. Treasury for use subject to particular

spending conditions. §1755(d). And the NCUA’s financial transactions are subject to audit by the Government Accountability Office. §1752a(f). The NCUA

must present an annual report to Congress and the

President summarizing its operations, including its

operating budget, “for the Congress to review the financial program approved by the Board.” §1752a(d).

For its part, the FDIC must issue a much more detailed annual report to Congress and the President,

detailing “its operations, activities, budget, receipts,

and expenditures for the preceding 12-month period.”

§1827(a)(1).

Likewise, the FCA collects most of its funding

from assessments levied against regulated banks and

the Federal Agricultural Mortgage Corporation

(Farmer Mac). §2250(a)(1)-(2). The FCA also faces detailed reporting requirements and the Inspector General Act, which allows audits of the FCA. 31 U.S.C.

§§401-24.

Finally, the FHFA secures its funding through assessments of regulated entities, subject to a cap of its

reasonable costs and expenses, with an illustrative

list. 12 U.S.C. §4516(a). The FHFA is subject to supervision by the Office of Management and Budget

through detailed financial-operating-plan reporting

requirements. §4516(g). The FHFA is audited annually by the Comptroller General, which in turn produces a detailed annual report to Congress.

§4516(h)(1)-(2).

In each instance, the other financial regulators receive funding directly from regulated entities, as authorized by statute. None of these agencies enjoy a

perpetual funding mechanism, with funds drawn from

another agency, let alone one with another layer of

budgetary independence. These agencies also provide

much more detailed budgetary reporting information

to Congress than the Bureau. By comparison, the

OCC’s most recent annual report devoted over twenty

pages to detailed financial analysis and explanation of

the organization’s financial management, whereas the

CFPB’s most recent report to Congress included only

two cursory pages. Compare 2022 Annual Report at

41-63, OCC, (2022), perma.cc/T5H3-DBLP, with SemiAnnual Report of the CFPB at 73-75, CFPB (June 8,

2023), perma.cc/3DK3-B38X. This is a far cry from the

required justification for an agency’s budget and expenditures that additional congressional oversight

would imbue to the Bureau.

The Bureau also points to longstanding government programs like Social Security, Medicare, and

Medicaid, which receive standing appropriations from

Congress. See Pet. Br. 21; Cert. Pet. 41a n.16;

see also Amici Members of Congress Br. 4, 15. But

those programs are readily distinguishable from the

funding the Bureau receives that is “double-insulated”

from congressional appropriations or the people. Congress exerts tremendous controls over those programs,

unlike over the Bureau. See, e.g., 2023 OASDI Trustees Report (Mar. 31, 2023), perma.cc/GD2Y-TXTU.

And even Amici Members of Congress acknowledge

that the Social Security Administration is “largely

funded through the annual appropriations process.”

Members of Congress Amici Br. 25. Besides, the Bureau is a regulatory agency; it does not operate any

government funding programs like the Social Security

Administration. A ruling on the CFPB’s unique funding mechanism would not affect the funding of federal

programs like Social Security, Medicare, and Medicaid

that Congress closely controls.

2. The Bureau’s vast authority makes it

unique.

The Bureau’s preferred comparators are also far

more limited in their reach, regulating only narrow

corners of a particular industry. That distinction provides yet another reason why the Bureau needs

greater oversight. For comparison, the OCC works directly with nationally chartered banks to ensure they

are sound and competitive. 12 U.S.C. §1(a). The FDIC

and NCUA share the responsibility of providing stability to different types of depository institutions.

§1811(a); §1752a. Likewise, the FCA and FHFA oversee credit for markets farms and home mortgages, respectively. §2252(a); §4513(a)(1)(B). The Bureau’s regulations touch all those aspects of financial markets

and extend to the financial-service operations of auto

dealers, law firms, and university student-loan offices,

just to name a few. §5491(a). This broad scope is essential to the Bureau’s mission—one that touches

nearly every aspect of consumers’ lives and the businesses that serve them.

Further, none of these other agencies have near

the same array of powers as the Bureau. No other

agency has the authority to “ac[t] as a mini legislature,

prosecutor, and court responsible for creating substantive rules for a wide swath of industries, prosecuting

violations, and levying knee-buckling penalties

against private citizens.” Seila Law, 140 S. Ct. at 2202

n.8. The Constitution demands that an agency that

“wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S.

economy” receive greater funding and budgetary oversight than is currently provided to the Bureau. Id. at

2191.

Contrary to its own preferred categorization, the

Bureau is more like the market regulators that inspired its design. As Senator Elizabeth Warren, the

“intellectual founder” of the agency, argued in her paper calling for the Bureau’s creation: “Just as the Consumer Product Safety Commission (CPSC) protects

buyers of goods and supports a competitive market, a

new regulatory agency—a Financial Product Safety

Commission (FPSC)—would protect consumers who

use financial products.” Warren, Product Safety Regulation as a Model for Financial Services Regulation, 42

J. Consumer Aff. 452, 453 (2008). In fact, the CPSC

carries out its broad congressional mandate “to protect

the public” and “assist consumers” as a market regulator. 15 U.S.C. §§2051(b)(1)-(2), 2053. Unlike the Bureau, each year the CPSC makes a performance

budget request to Congress as part of the appropriations process. See 2023 Performance Budget Request

to Congress, CPSC (Mar. 28, 2022), perma.cc/ZK3FY2MF.

Likewise, the FTC operates as a market regulator

to protect competition and protect consumers.

15 U.S.C. §45. The Bureau even shares some authority with the FTC, including the regulation of unfair or

deceptive acts or practices. §45(a). Yet, unlike the Bureau, the FTC annually goes through the congressional appropriations process to obtain its operating

budget. See Fiscal Year 2024 Congressional Budget

Justification, FTC (Mar. 13, 2023), perma.cc/R5VECQ3R. Even the SEC must go through the federal appropriations process for its annual operating budget,

even though it collects registration fees that exceed its

appropriations. See FY 2024 Congressional Budget

Justification, SEC (Mar. 13, 2023), perma.cc/7PCF3KGE. Thus, unlike its closer comparators in scope

and authority as a market regulator, the Bureau is noticeably absent from the appropriations process and

the accountability it provides.

To be sure, Congress designed the Bureau to exempt it from typical political pressures. CFPB v. All

Am. Check Cashing, Inc., 33 F. 4th 218, 222-23 (5th

Cir. 2022) (Jones, J., concurring). But Congress cannot

constitutionally exempt the Bureau from accountability to the people. Seila Law was the first step in introducing the Bureau to constitutionally-mandated accountability. The Bureau’s unmatched powers and

reach, alongside its level of budgetary independence,

warrant funding accountability tailored to this unprecedented agency’s unique structure.

III. The Court can mitigate disruptions in the

marketplace by crafting a narrow remedy.

Amici understand the important role the Bureau

has in setting and enforcing reasonable regulations in

consumer financial markets. When it regulates with

accountability and consistent with statutory and procedural mandates, the Bureau promotes transparency

and efficiency in the marketplace to the benefit of industry and consumers alike. But as this Court warned

more than a decade ago, “[t]he growth of the Executive

Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern

that it may slip from the Executive’s control, and thus

from that of the people.” Free Enter. Fund, 561 U.S. at

499. This Court thus can and should craft an appropriate remedy that avoids disruptions in consumer financial markets while also vindicating the Constitution. See, e.g., id., at 508 (“Generally speaking, when

confronting a constitutional flaw in a statute, we try

to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.”).

An appropriate remedy here would be much like

the one in Seila Law. There, this Court severed another unconstitutional feature of this same Bureau.

Here, too, this Court could sever the unconstitutional

funding mechanism, leaving the rest of the Bureau’s

enabling act in place. Of course, this would include

severing the funding provision that authorizes the Director to requisition funds from the Federal Reserve—

not merely the provisions precluding oversight of the

Bureau’s unspent funds, as Amici States suggest.

12 U.S.C. §5497; see also Amici States Br. 26 (ignoring

the only source ever used to fund the Bureau’s funds).

Only severing the funding mechanism from the Federal Reserve can remedy the double insulation that

makes the Bureau’s funding unique and offensive to

the Appropriations Clause. Congress would then have

the opportunity to fund the Bureau in a constitutionally appropriate manner.

To give Congress time to make that change, this

Court should stay its decision for a reasonable but defined period to allow Congress to authorize temporary

funding or permanently fix the constitutional defect.

See S. Ct. R. 45(3). Although a stay is not the ordinary

course when this Court rules a statutory provision unconstitutional, it may be appropriate in the unique circumstances here. The agency is already operating and

has been doing so for quite some time; a decision holding its funding mechanism unconstitutional would

doubtless raise a number of legal issues for the government in terms of implementation. Out of respect

for the coordinate branches of government that created this agency, a stay to let Congress and the President fix the funding mechanism with minimum disruption may be justified here. But of course, such a

stay should not be indefinite. There are bedrock constitutional principles at stake and, as noted above, the

Bureau has both extraordinary power and an unfortunate history of exceeding its authority.

No matter what this Court decides to do with a

stay, it should make clear that the remedy it provides

is a limited one. The Bureau has already conceded that

the judgment below “did not change the rules governing regulated entities.” Cert. Pet. 10 n.3. Rather, all it

did was vacate the Payday Lending Rule that had not

yet gone into effect. Id.

Indeed, the Fifth Circuit’s vacatur remedy was

limited and correct under the circumstances. This

Court has always provided a directly responsive remedy for a prevailing party in separation-of-powers

cases. The successful party in these cases is entitled to

an order setting aside as void ab initio the particular

action taken by the unlawfully constituted agency.

See, e.g., Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018)

(invalidating challenged proceeding and remanding

for new adjudication before a different, properly appointed ALJ); Noel Canning, 573 U.S. at 521 (setting

aside a challenged agency order issued by an unconstitutionally appointed adjudicative board); Stern v.

Marshall, 564 U.S. 462, 469 (2011) (invalidating bankruptcy court order issued in violation of Article III);

Nguyen v. United States, 539 U.S. 69, 83 (2003) (where

an appellate panel included a non-Article III judge

who lacked jurisdiction, returning the challenged

“cases to the Ninth Circuit for fresh consideration …

by a properly constituted panel”); Ryder v. United

States, 515 U.S. 177, 188 (1995) (invalidating the decision of an unconstitutionally constituted panel and

remanding for a new “hearing before a properly appointed panel”). The specific vacatur of the rule challenged in this case honors that tailored approach.

That tailored approach also extends to parties in

other pending cases who have raised the constitutional defect in the CFPB’s funding mechanism as a

basis for relief. See, e.g., Bohon v. FERC, 143 S. Ct.

1779 (2023) (GVR’d in light of Axon Enterprise, Inc. v.

FTC, 598 U.S. __ (2023)); Polaris Innovations Ltd. v.

Kingston Tech. Co. Inc., 141 S. Ct. 2844 (2021) (GVR’d

in light of United States v. Arthrex, Inc., 141 S. Ct.

1970 (2021)); NLRB v. Gestamp S.C. LLC, 573 U.S.

957 (2014) (GVR’d in light of Noel Canning, 573 U.S.

513). If it were otherwise, and relief in separation-ofpowers cases were good for only one party, it would

create the very “disincentive to raise” separation-ofpowers challenges that this Court has rejected. Ryder,

515 U.S. at 183; see Lucia, 138 S. Ct. at 2055 n.5 (stating that the remedy in a separation-of-powers case

should be created to further the “structural purposes”

of the separation of powers). Thus, Amici who have

raised the funding mechanism in their own lawsuits

believe that they are entitled to vacatur of the challenged actions on that basis. Similarly, enforcement

actions should be paused in the interim, until Congress addresses the funding issues. See Seila Law, 140

S.Ct. at 2220 (Thomas, J., concurring in part and dissenting in part). And constitutionally-funded Bureau

officials should, at a minimum, pause and review the

propriety of any pending enforcement actions where

this issue has been raised. See Cert. Pet. 29 (listing

several enforcement actions where parties raised this

very constitutional issue).

Even so, the relief afforded here would be limited.

The Administrative Procedure Act gives regulated entities only six-years from the date of injury to challenge agency actions. 28 U.S.C. §2401(a). And, in most

cases, the time to appeal from a past agency adjudication, 12 U.S.C. §5563 (30 days), or court decision, Fed.

R. App. P. 4 (60 days), has long since lapsed. Amici are

not suggesting that a ruling to enforce the Constitution would resurrect past enforcement actions for

which parties have already exhausted their requests

for relief. But rather, relief would be limited to a few

pending actions where the parties have raised the argument at issue here.

Providing the limited remedy discussed here

would not disrupt the financial sector. Doctrines of Article III standing, equity, and party presentation,

among others, as well as statutes of limitations, would

prevent broader use of this Court’s ruling to disrupt

the Bureau. The federal courts’ experience with other

major separation-of-powers decisions, like Seila Law,

Lucia, and Free Enterprise Fund prove the point.

CONCLUSION

To be sure, some heartburn is inevitable when

Congress creates a new agency and structures it in an

unconstitutional way. But that unfortunate circumstance is not a reason for this Court to also ignore the

Constitution. The Bureau’s statutory duties are vital

to the financial-services industry and the American

consumers they serve. This Court should not shy away

from ensuring that the Bureau is constitutionally

sound.

This Court has all the tools it needs to avoid any

disruptive consequences from a correct decision here.

It can (and should) stress the dissimilarity between

the Bureau and other financial regulators. It can (and

should) clarify the nature of the remedy it is providing.

And it can (and should) afford Congress a defined period to provide constitutionally sound funding to the

Bureau. With these steps, the Court will fulfill its duty

to the Constitution and ultimately to the people.

The Court should affirm the decision below and

stay its decision for a reasonable time to give Congress

the opportunity to act.