The U.S. Court of Appeals for the D.C. Circuit spent several hours yesterday weighing whether corporations and state attorneys general had legal standing to challenge the existence of the federal Consumer Financial Protection Board, the merits of their challenges notwithstanding, the Legal Times reported today. Assuming the court found the challengers did have standing and the cases moved forward — and eventually came back before the D.C. Circuit — Judge Brett Kavanaugh was interested in their argument that having an agency headed by one person was a problem. Randall Miller of Venable, lead attorney for one of the challengers, sprang into action, speaking rapidly as the final seconds of his argument time ticked down. Unlike regulatory agencies where multiple people were appointed to make important decisions, such as the Federal Trade Commission or the Securities and Exchange Commission, he said, the consumer protection board concentrated power in the hands of just one person. History supported multimember decision-making for a regulatory agency as big and as powerful as the board, Miller said. He argued that such a setup acted as a restraint on an agency’s ability to bring enforcement actions. It isn’t clear if the D.C. Circuit will ultimately dig into the single- versus multiple-member issue or the many other constitutional challenges that Miller and the other challengers raised. The judges first have to decide whether federal district judges were wrong to dismiss two cases challenging the agency’s existence before reaching the merits.
