Collector - February 2020 - 52

LASTWORD

How Should the CFPB Be Structured?
This interview is an excerpt from a recent episode of ACA's podcast examining the
Seila Law LLC v. Consumer Financial Protection Bureau case being considered by the Supreme Court.

W

hat is the Seila Law case all
about, and how could it affect the
accounts receivable management
industry? Kari Barber, ACA International's
former corporate counsel, sat down for
a conversation with Jessica Klander,
shareholder at Bassford Remele, to learn more
about what this pending U.S. Supreme Court
case could mean for ACA members. This is an
edited excerpt from their interview, which first
aired on ACA's podcast.
Klander: There's actually a provision in
the statute that says the president can only
remove the [CFPB] director for cause. That is
a very high standard. It's basically if the CFPB's
director does something outside of the scope
of their authority, which is very broad.
What Seila Law and others who are
challenging [the CFPB's structure] have said is
that it's unconstitutional because it interferes
with the separation of powers. It undermines
the president's ability to terminate and get
rid of the director at will. So really what's
at issue here is: Is that for-cause provision
unconstitutional? And I would say that most
people observing this case would say that the
Supreme Court will probably find that clause
to be unconstitutional.
But the big question is, if it is, then what
happens? I think there are people who would
expect that the CFPB would be dismantled
entirely. And I think my feelings on that are
probably that's not what's going to happen.

52

One potential remedy is that they dismantle
the CFPB entirely and then kick it to the
legislature to try and restructure it in a way
that is constitutional.
But there are other remedies that I think
are on the table too, and by the Supreme
Court asking the additional issue of whether
or not this for-cause clause in the provision
is severable so that we can keep the CFPB
structure in place, that sort of tips their hand
that that's what the Supreme Court thinks
they're going to do.
Barber: So what happens if the Supreme
Court strikes it down as unconstitutional?
Does that then unravel everything the CFPB
has done?
Klander: You know, I've thought a lot
about this because certainly from a theoretical
standpoint that is what the potential outcome
is. [The provision has] stripped the president
of his power to remove the sitting director
at will. And so anything that Cordray did
going forward was unconstitutional in an
unconstitutional structure or even if you
go further, everything they've ever done is
unconstitutional because the structure is
unconstitutional. I think theoretically that is
true. But I don't really believe that will be the
outcome. I'd be shocked if that's what came
about from this.
I think more likely it will be an argument
about why even though this portion of it
was unconstitutional, it doesn't render all of

the enforcement actions unconstitutional.
So we'll go forward under a more
constitutional structure, but all the past
enforcement actions will stay in force. If I'm
reading tea leaves, that would be my guess.
But certainly there's a good argument on the
other side for why that's not truly the way it
should go.
For the complete interview, please visit www.
acainternational.org/acacast.

TM

Podcast Title: Understanding the
Challenge to the Constitutionality
of the CFPB's Leadership Structure
Participants: Kari Barber, ACA
International's former corporate
counsel; Jessica Klander,
shareholder at Bassford Remele
Air date: 11/18/2019

ACAINTERNATIONAL.ORG


http://www.acainternational.org/acacast http://www.acainternational.org/acacast http://www.ACAINTERNATIONAL.ORG

Collector - February 2020

Table of Contents for the Digital Edition of Collector - February 2020

Presidents Page
Industry News
Best Practices
FYI
Collection Tips
Overlapping Responsibilities?
Taking on Tax Time
Making Connections in D.C.
Calendar
Honor Roll
Education Spotlight
Creative Solutions
Ask the Experts: Reaching Out
Legal Liability & the FDCPA
Advocacy and Parenthood: Not So Different
Your Opinion Matters
Beyond the Boundary of the Law
ACA SearchPoint
Membership
Ad Index
Last Word
Collector - February 2020 - Cover1
Collector - February 2020 - Cover2
Collector - February 2020 - 1
Collector - February 2020 - 2
Collector - February 2020 - 3
Collector - February 2020 - 4
Collector - February 2020 - Presidents Page
Collector - February 2020 - Industry News
Collector - February 2020 - 7
Collector - February 2020 - 8
Collector - February 2020 - 9
Collector - February 2020 - 10
Collector - February 2020 - 11
Collector - February 2020 - Best Practices
Collector - February 2020 - 13
Collector - February 2020 - FYI
Collector - February 2020 - 15
Collector - February 2020 - Collection Tips
Collector - February 2020 - 17
Collector - February 2020 - Overlapping Responsibilities?
Collector - February 2020 - 19
Collector - February 2020 - 20
Collector - February 2020 - 21
Collector - February 2020 - Taking on Tax Time
Collector - February 2020 - 23
Collector - February 2020 - 24
Collector - February 2020 - 25
Collector - February 2020 - Making Connections in D.C.
Collector - February 2020 - 27
Collector - February 2020 - 28
Collector - February 2020 - 29
Collector - February 2020 - 30
Collector - February 2020 - 31
Collector - February 2020 - Calendar
Collector - February 2020 - Honor Roll
Collector - February 2020 - Education Spotlight
Collector - February 2020 - 35
Collector - February 2020 - Creative Solutions
Collector - February 2020 - 37
Collector - February 2020 - Ask the Experts: Reaching Out
Collector - February 2020 - 39
Collector - February 2020 - Legal Liability & the FDCPA
Collector - February 2020 - 41
Collector - February 2020 - Advocacy and Parenthood: Not So Different
Collector - February 2020 - 43
Collector - February 2020 - Your Opinion Matters
Collector - February 2020 - 45
Collector - February 2020 - Beyond the Boundary of the Law
Collector - February 2020 - 47
Collector - February 2020 - ACA SearchPoint
Collector - February 2020 - 49
Collector - February 2020 - Membership
Collector - February 2020 - Ad Index
Collector - February 2020 - Last Word
Collector - February 2020 - Cover3
Collector - February 2020 - Cover4
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