Despite 'Good Day' at High Court, CFPB Not Out of Woods Yet

Despite 'Good Day' at High Court, CFPB Not Out of Woods Yet

October 5, 2023, Law360

Eric Mogilnicki contributed his analysis to a Law360 article regarding the U.S. Supreme Court oral arguments on the constitutionality of the Consumer Financial Protection Bureau’s (CFPB) funding structure. The article also explores how despite indications that the court would rule not against the CFPB on this matter, it could curtail the agency’s enforcement and rulemaking power.

Commenting on the case, Eric said “it was a good day for the CFPB. It was fascinating to see that in this case, the progressives are united around a focus on originalism — that is to say, the text and historical antecedents — which is the preferred method of constitutional analysis of the conservative majority.”

Eric also added commentary on how the litigation would affect the agency. “I do think that if the court was grappling with upholding the Fifth Circuit decision, it could have and should have spent more time figuring out exactly how it would do so without disrupting the work of the CFPB, other financial regulators and other agencies that are funded in a manner other than a fixed, one-year appropriation,” he said.