Fifth Circuit Says CFPB Funding Violates Appropriations Clause, Separation of Powers

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit ruled last week that funding mechanism for the Consumer Financial Protection Bureau violates the Appropriations Clause and the separation of powers. While the ruling itself only strikes the CFPB's Payday Lending Rule, the logic of the opinion threatens all CFPB actions and the CFPB itself.

The case is just the latest attack on the CFPB under separation-of-powers principles (and, more generally, attacks on all agencies with any independence under separation-of-powers principles). The Court previously ruled in Seila Law v. CFPB that the for-cause tenure protection for the Director impermissibly intruded on the President's Article II authority over the executive branch, in violation of the separation of powers. This case tests agency independence under a different principle, though, the Appropriations Clause and Congress's power of the purse. The argument--and the court's ruling--says that the CFPB's funding mechanism is unconstitutional, because the CFPB doesn't get its funds through the ordinary congressional appropriations process, as required by the Appropriations Clause; instead, it gets its funds from the Federal Reserve, which, in turn, gets its funds from bank assessments.

While the ruling only applies to the Payday Lending Rule, its logic extends to all things CFPB. Indeed, the ruling will invite other cases challenging all manner of CFPB actions. If the ruling gains traction in other circuits or sticks on appeal, it'll likely ultimately end the agency as we know it.

The case, Community Financial Services Association of America v. CFPB, arose out of a challenge to the CFPB's Payday Lending Rule. That Rule prohibits lenders from making covered loans "without reasonably determining that consumers have the ability to repay the loans according to their terms," and limits a lender's ability to obtain loan repayments by pre-authorized account access. Community Financial Services argued that the Rule was invalid because (1) the Director enjoyed unconstitutional insulation from removal at the time of its adoption, (2) the Rule violated the non-delegation doctrine, and (3) the CFPB, in issuing the rule, violated the Appropriations Clause and the separation of powers.

The Fifth Circuit rejected the first two arguments, but accepted the third. The court noted that the CFPB gets its funding from the Federal Reserve, which gets its own funding from bank assessments (and not congressional appropriations). The CFPB then holds its funds in a separate account maintained by the Fed, and not an account at Treasury (like other agencies). This allows the CFPB to roll-over funding from year to year (unlike most other agencies). 

The court said that this structure "double-insulated" the CFPB from the ordinary congressional appropriations process, and that the structure therefore violated the Appropriations Clause and the separation of powers. "An expansive executive agency insulated (no, double-insulated) from Congress's purse strings, expressly exempt from budgetary review, and headed by a single Director removable at the President's pleasure is the epitome of the unification of the purse and the sword in the executive . . . ."

The court was unconcerned that Congress itself created the CFPB's funding structure. It said that Congress created the funding structure through ordinary legislation, not "in consequence of appropriations made by law," as required by the Appropriations Clause. Moreover, it said that Congress can't cede away its authority in violation of the separation of powers.

The court acknowledged that several other courts upheld the CFPB's funding structure. But it disagreed as to the reasoning. The court said that these other courts focused on the fact that some other federal agencies are self-funded, but that in contrast to these agencies the CFPB is "double-insulated" because it receives its funding from the Fed.

The court "vacate[d] the Payday Lending Rule as the product of the Bureau's unconstitutional funding scheme."