Academic

Barnett on the Consumer Financial Protection Bureau

By Lawrence Solum

Kent H. Barnett (University of Kentucky College of Law) has posted The Consumer Financial Protection Bureau's Appointment with Trouble (American University Law Review, Vol. 60, No. 5, 2011) on SSRN. Here is the abstract:

This article considers whether the appointment of the Consumer Financial Protection Bureau?s Deputy Director comports with the Appointments Clause. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Director of the Bureau appoints the Deputy Director. But it is unclear whether the Bureau is a "department" and thus whether the Director is a department head that, under the Appointments Clause, can appoint inferior officers such as the Deputy Director. Although I argue that the Bureau should be deemed a "department," I explain why the Court?s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board and prior Appointments Clause jurisprudence suggest otherwise. An inferior officer?s appointment (that of a deputy, no less) may seem inconsequential. But an invalid appointment could, depending on the Deputy Director?s duties, lead to unnecessary, time-consuming litigation and perhaps even the invalidation of agency actions for the newly established Bureau in its formative months and years. If so, the Bureau?s opponents may have an additional, yet until now unnoticed, means of disrupting the new Bureau.

Full post as published by Legal Theory Blog on March 01, 2011 (boomark / email).