The Consumer Financial Protection Bureau's Appointment with Trouble

Abstract

This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department head who can appoint the Deputy Director. Although I argue that the Bureau should be deemed a department, I explain why the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board and prior Appointments Clause jurisprudence suggest otherwise. Indeed, this article provides one of the first analyses and applications of the new definition of “department” announced in Free Enterprise Fund.

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 years. If so, the Bureau’s opponents may have an additional, yet until now unnoticed, means of disrupting the new Bureau. Congress should, without delay, remedy the Deputy Director’s potentially improper appointment.

Keywords: appointment, separation of powers, consumer financial protection bureau, administrative law, agency, bureau, Free Enterprise Fund, Freytag, inferior officer, department