Notice & Comment

D.C. Circuit Review – Reviewed: The I-Don’t-Have-Time-To-Read-It-All Version of PHH Corp. v. CFPB

At long last, the en banc D.C. Circuit has decided PHH Corp. v. CFBP. This case — which, of course, we have discussed many times here at Notice & Comment — concerns the constitutionality of the restrictions on the President’s ability to remove the CFPB director (namely, only for “for inefficiency, neglect of duty, or malfeasance in office,” i.e., “for cause”). This is an important question with a real shot for Supreme Court review. Unfortunately, in full, the various D.C. Circuit opinions in this case add up to 250 pages — about the same length as Silas Marner. This is a problem. To be sure, George Eliot’s timeless tale of a weaver falsely accused of theft is a fine novel. But it is not one that a lawyer dashing off to a meeting has time to absorb on an iPhone.

So what’s a busy lawyer to do?

Welcome to D.C. Circuit Review — Reviewed! Here is the I-Don’t-Have-Time-To-Read-It-All Version of PHH Corp.

Pages 1 to 4 — The Lawyers. There are many lawyers. There are famous lawyers. There are many famous lawyers.

Page 4 — The Summary of Votes:

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Pages 5 to 68 — The Majority: Judge Pillard concludes that Supreme Court precedent compels the conclusion that the CFPB structure is constitutional: “The Court has since reaffirmed and built on [Humphrey’s Executor v. United States], and Congress has embraced and relied on it in designing independent agencies. We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II.”

Key points from the analysis — with many citations omitted:

  • “The en banc court vacated the panel decision in its entirety. Following oral argument, the full court, including Judge Henderson [who had not taken this path in the original panel decision], unanimously concluded that we cannot avoid the constitutional question. That is because the disposition of PHH’s claims, reinstating the panel’s statutory holding, results in a remand to the CFPB. Further action by the CFPB necessitates a decision on the constitutionality of the Director’s for-cause removal protection. We accordingly decide only that constitutional question. The panel opinion, insofar as it related to the interpretation of RESPA and its application to PHH and Atrium in this case, is accordingly reinstated as the decision of the three-judge panel on those questions.” [This is a big deal; it means that PHH likely still wins the case; the CFPB’s specific analysis as to PHH itself is rejected – Ed.]
  • “We also decline to reach the separate question whether the ALJ who initially considered this case was appointed consistently with the Appointments Clause. Our order granting review invited the parties to address the Appointments Clause implications for this case only “[i]f the en banc court” in Lucia v. SEC, 832 F.3d 277 (D.C. Cir. 2016), concluded that an SEC ALJ is an inferior officer rather than an employee. We did not so conclude. Instead, after argument in that case, the en banc court denied the petition for review. Lucia v. SEC, 868 F.3d 1021 (D.C. Cir. 2017), cert. granted, __ S. Ct. __, 2018 WL 386565 (Jan. 12, 2018).[Emphasis added; that cert grant is also a big deal – Ed.]
  • “The ultimate purpose of our constitutional inquiry is to determine whether the means of independence, as deployed at the agency in question, impedes the President’s ability under Article II of the Constitution to ‘take Care that the Laws be faithfully executed.’ U.S. Const. art. II, § 3. It is beyond question that ‘there are some “purely executive” officials who must be removable by the President at will if he is to be able to accomplish his constitutional role.’ Nobody would suggest that Congress could make the Secretary of Defense or Secretary of State, for example, removable only for cause. At the same time, the Court has consistently affirmed the constitutionality of statutes ‘conferring good cause tenure on the principal officers of certain independent agencies.'”
  • “PHH’s challenge is not narrow. It claims that independent agencies with a single leader are constitutionally defective while purporting to spare multi-member ones. But the constitutional distinction PHH proposes between the CFPB’s leadership structure and that of multi-member independent agencies is untenable. That distinction finds no footing in precedent, historical practice, constitutional principle, or the logic of presidential removal power. The relevance of ‘internal checks’ as a substitute for at-will removal by the President is no part of the removal-power doctrine ….”
  • “Wide margins separate the validity of an independent CFPB from any unconstitutional effort to attenuate presidential control over core executive functions. The threat PHH’s challenge poses to the established validity of other independent agencies, meanwhile, is very real. PHH seeks no mere course correction; its theory, uncabined by any principled distinction between this case and Supreme Court precedent sustaining independent agencies, leads much further afield. Ultimately, PHH makes no secret of its wholesale attack on independent agencies — whether collectively or individually led — that, if accepted, would broadly transform modern government”
  • “Though the Court in Humphrey’s Executor and Wiener [v. United States] thus emphasized the ‘quasi-legislative’ and ‘quasi-judicial’ character of the relevant offices, more recently the Court in Morrison v. Olson downplayed those particular characterizations of independent agencies while continuing to narrowly read Myers [v. United States] as disapproving ‘an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction.'”
  • “The Supreme Court’s most recent removal-power decision, Free Enterprise Fund [v. Public Company Accounting Oversight Board], invalidated a ‘highly unusual’ removal restriction … At issue in Free Enterprise Fund was an extreme variation on the traditional good-cause removal standard: a provision of the Sarbanes-Oxley Act that afforded members of the Public Company Accounting Oversight Board, an agency within the Securities and Exchange Commission, unusually strong protection from removal. …. The Court distinguished Humphrey’s Executor and Morrison as involving ‘only one level of protected tenure separat[ing] the President from an officer exercising executive power.’ …. The traditional for-cause protection enjoyed by the SEC Commissioners — and the officials in Morrison, Wiener, and Humphrey’s Executor — remains untouched by and constitutionally valid under Free Enterprise Fund. … Free Enterprise Fund did not, contrary to PHH’s suggestion, narrow Humphrey’s Executor or give Myers newly expansive force.”
  • “Congress’s commitment to independence for financial regulators is also reflected in the CFPB’s budgetary set-up. PHH and some of its amici protest Congress’s choice to allow the CFPB to claim funds from the Federal Reserve rather than through the congressional appropriations process. But Congress can, consistent with the Appropriations Clause, create governmental institutions reliant on fees, assessments, or investments rather than the ordinary appropriations process. See Am. Fed’n of Gov’t Emps., AFL-CIO, Local 1647 v. Fed. Labor Relations Auth., 388 F.3d 405, 409 (3d Cir. 2004).” [Emphasis added — not a cite to the Supreme Court, which may come up in cert. briefing – Ed.]
  • “PHH suggests that, even if budgetary independence and for-cause removal protection are not separately unconstitutional, their combination might be. But that combination is not novel. And, in any event, for two unproblematic structural features to become problematic in combination, they would have to affect the same constitutional concern and amplify each other in a constitutionally relevant way. … The CFPB’s budgetary independence primarily affects Congress, which has the power of the purse; it does not intensify any effect on the President of the removal constraint.”
  • “We are nevertheless urged that the constitutionality of for cause removal turns on a single feature of the agency’s design: whether it is led by an individual or a group. But this line of attack finds no home in constitutional law. … PHH’s emphasis on the CFPB’s leadership by a Director rather than a board defies historical practice as well. The Comptroller of the Currency, for example — an independent federal financial regulator with statutory removal protection dating back 150 years — is also headed by a single director. … Historical practice of independent agencies, including the earliest examples of independent financial regulators which operated under single heads, suffices to place the CFPB on solid footing. … PHH has not identified any reason to think that a single-director independent agency is any less responsive than one led by multiple commissioners or board members. If anything, the President’s for-cause removal prerogative may allow more efficient control over a solo head than a multi-member directorate.”
  • “[T]he passing reference to a ‘body’ of experts in Humphrey’s Executor arose in the course of the Court’s statutory holding, not its constitutional analysis. …. As an alternative theory why an agency’s leadership structure might be constitutionally relevant to presidential power, PHH points out that the CFPB Director’s five-year term means that some future President might not get to appoint a CFPB Director, whereas Presidents typically have an opportunity to appoint at least some members of multi-member commissions, or to select a member to act as chair. But the constitutionality of for-cause protection does not turn on whether the term is five years or four. None of the leaders of independent financial-regulatory agencies serves a term that perfectly coincides with that of the President, and many have longer terms than the CFPB Director.”
  • “[B]reaking with traditional separation-of-powers analysis and precedent, PHH and its amici assail the CFPB as somehow too powerful. But nothing about the focus or scope of the agency’s mandate renders it constitutionally questionable; indeed, the Bureau’s powers have long been housed in and enforced by agency officials protected from removal without cause. That fact underscores our fundamental point: The exercise of those powers by an independent official does not interfere with the President’s constitutional role.”
  • “Even if the CFPB were anomalous, PHH points to nothing that makes novelty itself a source of unconstitutionality. Novelty ‘is not necessarily fatal; there is a first time for everything.’ Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (opinion of Roberts, C.J.) … The independent counsel, the Sentencing Commission, and the FTC were each ‘novel’ when initiated, but all are constitutional. In the precedents PHH invokes, novelty alone was insufficient to establish a constitutional defect. … A constrained role for novelty in constitutional doctrine is well justified. Our political representatives sometimes confront new problems calling for tailored solutions. The 2008 financial crisis, which Congress partially attributed to a colossal failure of consumer protection, was surely such a situation. “
  • “Another of PHH’s leaps is its assumption that the CFPB’s challenged characteristics diminish ‘liberty,’ writ large. It remains unexplained why we would assess the challenged removal restriction with reference to the liberty of financial services providers, and not more broadly to the liberty of the individuals and families who are their customers.” [Because one is an exercise of governmental authority while the other is not? Ed.*]

Pages 69 to 74 — The Tatel Concurrence: Judge Tatel thinks the panel was wrong to rule against the CFPB on the statutory questions. As noted above, the en banc Court decided to let stand the panel decision’s rejection of the CFPB’s statutory decision. But Tatel agrees with the en banc majority as to the constitutional question: “Although it may (or may not) be wise, as a policy matter, to structure an independent agency as a multimember body, nothing in the Constitution’s separation of powers compels that result. The Constitution no more ‘enacts’ social science about the benefits of group decision-making than it does ‘Mr. Herbert Spencer’s Social Statics.’ Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J. dissenting).”

Pages 75 to 96 — The Wilkins Concurrence: Judge Wilkins puts special emphasis on the fact that this case arises in the posture of an adjudication rather than a rulemaking: “The petitioners (and our dissenting colleagues) seek to downplay this basic fact, even though it is the bedrock for the exercise of our jurisdiction. They do so because acknowledging that the Director has significant adjudicatory responsibilities – indeed, the Director’s adjudicatory functions are the only powers at issue in this case – seriously undermines the separation-of-powers challenge before us. All in all, those significant quasi-judicial duties, as well as the Director’s quasi-legislative duties and obligations to coordinate and consult with other expert agencies, provide additional grounds for denial of the separation-of-powers claim before us.” [Presumably the reason the majority opinion does not focus as much on “quasi” — which comes from Humphrey’s Executor — is because the Supreme Court seemed to brush the distinction aside in Morrison Judge Wilkins acknowledged that part of Morrison but said this: “Despite its rejection in Morrison of the simple categorization of officers, the Supreme Court was clear that it ‘d[id] not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant.'” For what it is worth, putting on my academic hat, it is hard to see how the Supreme Court’s “quasi” language is useful; it invites lots of line-drawing problems and, in any event, to be constitutional, any use of power by agency — whatever it is called –“must be exercises of[] the executive Power.” That said, Wilkins is correct that “quasi” is found in some of the Supreme Court’s cases. Ed.].

Judge Wilkins also stressed the number of checks on the director. He also addresses Judge Griffith’s “inefficiency” argument, supra.

Pages 97 to 121 — The Griffith Concurrence in the Judgment: The basic gist of this opinion is that the focus on removal restrictions misses the point because, in fact, it is really easy to have cause to remove the CFPB director — especially under “inefficiency” which includes some policy disagreements: “How difficult is it for the President to remove the Director? The President may remove the CFPB Director for ‘inefficiency, neglect of duty, or malfeasance in office.’ After reviewing these removal grounds, I conclude they provide only a minimal restriction on the President’s removal power, even permitting him to remove the Director for ineffective policy choices. Therefore, I agree that the CFPB’s structure does not impermissibly interfere with the President’s ability to perform his constitutional duties.'” Interesting. Note also this footnote: “I agree with Judge Kavanaugh’s statements in footnotes 7 and 18 of his dissent: Humphrey’s Executor and Morrison appear at odds with the text and original understanding of Article II. The Framers understood that the President’s constitutional obligations entitle him to remove executive officers; the Supreme Court said as much in Free Enterprise Fund. But until the Court addresses this tension, we are bound to faithfully apply Humphrey’s Executor and Morrison to the question before us.”

Here is an important paragraph:

In practical effect, my approach yields a result somewhat similar to Judge Kavanaugh’s proposed remedy. He would sever the for-cause provision from the CFPB’s authorizing statute, making the Director removable at will. My interpretation of the INM [“inefficiency, neglect of duty, or malfeasance in office”] standard would not disturb Congress’s design of the CFPB, but it would allow the President to remove the Director based on policy decisions that amounted to inefficiency. In addition, my analysis of the INM standard would likely have broader implications. For example, the definition of “inefficiency” presented here would presumably apply to other independent agencies protected by the INM standard. And while I conclude here that the INM standard is a permissible restriction on the President’s ability to remove the CFPB Director, other removal standards — particularly those lacking the “inefficiency” ground — may not be defensible under Humphrey’s Executor and Morrison.

Pages 122 to 173 — The Henderson Dissent: This dissent is similar (but not identical) to Judge Kavanaugh’s dissent. The main difference, I think, is remedy (she doesn’t buy his attempt at severance). Here is her theme: “[C]onsent of the governed is a sham if an administrative agency, by design, does not meaningfully answer for its policies to either of the elected branches. Such is the case with the Consumer Financial Protection Bureau.”

Here are some key thoughts:

  • Humphrey’s Executor remains the exception, not the rule … . First principles, not Humphrey’s Executor, control here. This unaccountable agency violates them. I disagree with the majority’s conclusion to the contrary. Further, although I agree with portions of Judge Kavanaugh’s dissent, I cannot join it, primarily because it would strike and sever Title X’s forcause removal provision. Even assuming that remedy would bring the CFPB fully in line with the Constitution, I do not think we can dictate it to the Congress.”
  • “I found it unnecessary to decide the CFPB’s constitutionality at the panel stage because PHH sought the same relief (‘vacatur’) whether we endorsed its constitutional claim or its statutory claims, the latter of which the panel unanimously found meritorious. But unlike its panel briefs, PHH’s en banc briefs expressly ask that the Director’s decision ‘be vacated without remand’ and that the Court ‘forbid the CFPB from resuming proceedings.’ Because that relief is warranted only if the CFPB is unconstitutionally structured, I believe the constitutional question can no longer be avoided. In any event, because the majority decides the constitutional question and gets it wrong, I see no reason to withhold my views.”
  • “For me the initial question is whether the Supreme Court has ‘encountered’ an agency like the CFPB or if, instead, its structure is ‘novel.’ Although structural ‘innovation’ is not itself unconstitutional, a novel agency fights uphill. …. The agency just described is not even a distant cousin of the FTC blessed by Humphrey’s Executor. I see at least three critical distinctions: [freedom from appropriations, obvious partisanship, and lack of a multi-member body.]”
  • “In rulings reinstated today, the panel rejected: the Director’s new interpretation of the anti-kickback provision of the Real Estate Settlement Procedures Act (RESPA); his attempt to apply that interpretation retroactively to PHH; his construction of RESPA’s limitations provision; and his theory that the CFPB is bound by no limitations period in any administrative enforcement action under any of the laws the agency administers. The issues were ‘not a close call’: the CFPB flunked ‘Rule of Law 101’ and was called out for ‘gamesmanship’ and ‘absurd[]’ reasoning. An agency that gets the law so badly wrong four times over in its first major case in this circuit has a steep climb in claiming ‘[i]t is charged with the enforcement of no policy except the policy of the law.'” [Ouch. Ed.]
  • “In short, the CFPB and its Director have no ancestor …. Undeterred, the CFPB takes a divide-and-conquer approach to the structural features that in combination differentiate it from any predecessor. It contends that each feature has no constitutional import standing alone and that, collectively, they add up to no problem at all. Oral Arg. Tr. 66-67 (‘[W]hen you add them all together you’re adding zero plus zero plus zero plus zero, and at the end of the day . . . you’re still there with zero.’). The apt analogy is not math but chemistry: even if innocuous in isolation, some elements are toxic in combination.” [This point is similar to the point made by the Supreme Court last week in the context of probable cause; divide-and-conquer doesn’t always work. Ed.]
  • “The CFPB assures us that ‘the President has an 80 percent chance … to be guaranteed an opportunity to replace the Bureau’s Director.’ Oral Arg. Tr. 49. That is hardly comforting. It means there is a twenty per cent chance the President will have no at-will opportunity to replace the agency’s leader — and no real policy influence over the agency — for the entirety of the President’s four-year term. Furthermore, the odds grow ever larger that the President will have no such opportunity or influence during his first three years, first two years, first year and first hundred days. The President cannot be reduced to appointer-in-chief.”
  • “The case-specific result is disturbing enough: the people will suffer this agency’s unnecessary mistakes for years to come. Worse, however, is that the majority’s logic invites aggregation. Suppose the Congress over time decides to restructure, say, the FTC, the SEC, the Federal Election Commission (FEC) and the National Labor Relations Board (NLRB) so that each stands outside of the appropriations process and is headed by a single political-minded director removable only for cause and tenured for five years. Or make it seven years. Cf. 15 U.S.C. § 41 (tenure for FTC commissioner). Or fourteen years. Cf. 12 U.S.C. § 241 (tenure for member of Federal Reserve Board of Governors). Now throw in fourteen years for the CFPB Director. I can discern no reason why the majority would not approve all of that and more if it happened one step at a time. But if the FTC, SEC, FEC, NLRB and CFPB were each headed by a fast-acting partisan director with fourteen years of tenure, the policy havoc they could collectively inflict from within the executive branch without having to answer to the executive would be too much for Article II to bear.” [This will be mentioned in the cert. petition – Ed.]
  • “Judge Kavanaugh and I agree that Title X’s for-cause removal provision, 12 U.S.C. § 5491(c)(3), is unconstitutional. But he would excise section 5491(c)(3) and preserve the rest of Title X. I respectfully disagree with that approach. Above all else, the 111th Congress wanted the CFPB to be independent: free, that is, from industry influence and the changing political tides that come with accountability to the President. Severing section 5491(c)(3) would yield an executive agency entirely at odds with the legislative design. In my view, the Congress would not have enacted Title X in its current form absent for-cause removal protection. I believe, therefore, that the appropriate remedy for the CFPB’s Article II problem is to invalidate Title X in its entirety.”

Pages 174 to 246 — The Kavanaugh Dissent: This dissent makes many of the same points as the original panel majority so I won’t rehash. Here is how it begins:

This is a case about executive power and individual liberty.

To prevent tyranny and protect individual liberty, the Framers of the Constitution separated the legislative, executive, and judicial powers of the new national government. To further safeguard liberty, the Framers insisted upon accountability for the exercise of executive power. The Framers lodged full responsibility for the executive power in a President of the United States, who is elected by and accountable to the people. The first 15 words of Article II speak with unmistakable clarity about who controls the executive power: “The executive Power shall be vested in a President of the United States of America.” U.S. CONST. art. II, § 1. And Article II assigns the President alone the authority and responsibility to “take Care that the Laws be faithfully executed.” Id. § 3. The purpose “of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting).

[T]he heads of executive agencies are accountable to and checked by the President; and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members. No independent agency exercising substantial executive authority has ever been headed by a single person.

Until now.


The Director of the CFPB wields enormous power over American businesses, American consumers, and the overall U.S. economy. The Director unilaterally implements and enforces 19 federal consumer protection statutes, covering everything from home finance to student loans to credit cards to banking practices.

The Director alone may decide what rules to issue. The Director alone may decide how to enforce, when to enforce, and against whom to enforce the law. The Director alone may decide whether an individual or entity has violated the law. The Director alone may decide what sanctions and penalties to impose on violators of the law.

Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority –- that is, authority to take action on one’s own, subject to no check –- than any single commissioner or board member in any other independent agency in the U.S. Government. Indeed, other than the President, the Director enjoys more unilateral authority than any other official in any of the three branches of the U.S. Government. That combination –- power that is massive in scope, concentrated in a single person, and unaccountable to the President –- triggers the important constitutional question at issue in this case.

Here are a few noteworthy points.

  • “Because the Director acts alone and without Presidential supervision or direction, and because the CFPB wields broad authority over the U.S. economy, the Director enjoys significantly more unilateral power than any single member of any other independent agency. By ‘unilateral power,’ I mean power that is not checked by the President or by other commissioners or board members. Indeed, other than the President, the Director of the CFPB is the single most powerful official in the entire U.S. Government, at least when measured in terms of unilateral power. That is not an overstatement. What about the Speaker of the House? The Speaker can pass legislation only if 218 Members agree. The Senate Majority Leader? The Leader typically needs 60 Senators to invoke cloture, and needs a majority of Senators (usually 51 Senators or 50 plus the Vice President) to approve a law or nomination. The Chief Justice? The Chief Justice must obtain four other Justices’ votes in order to prevail. The Chair of the Federal Reserve? The Chair often needs the approval of a majority of the Federal Reserve Board. The Secretary of Defense? The Secretary is supervised and directed and removable at will by the President. On any decision, the Secretary must do as the President says. So too with the Secretary of State, and the Secretary of the Treasury, and the Attorney General. To be sure, the Dodd-Frank Act requires the Director to establish and consult with a ‘Consumer Advisory Board.’ But the advisory board is just that: advisory. … The Act also, in theory, allows a supermajority of the Financial Stability Oversight Council to veto certain regulations of the Director. But by statute, the veto power may be used only to prevent regulations (not to overturn enforcement actions or adjudications); only when two-thirds of the Council members agree; and only when a particular regulation puts ‘the safety and soundness of the United States banking system or the stability of the financial system of the United States at risk,’ a standard unlikely to be met in practice in most cases.”
  • “Have there been any independent agencies headed by a single person? In an effort to be comprehensive, the threejudge panel in this case issued a pre-argument order asking the CFPB for all historical or current examples it could find of independent agencies headed by a single person. The CFPB found only three examples: the Social Security Administration, the Office of Special Counsel, and the Federal Housing Finance Agency. At the en banc stage, the CFPB cited no additional examples. None of the three examples, however, has deep historical roots.”
  • “Some have suggested that the CFPB Director is similar to the Comptroller of the Currency. But unlike the Director, the Comptroller is not independent. The Comptroller is removable at will by the President. Full stop. A predecessor Comptroller of the Treasury, established in 1789, likewise was not independent.” [The Comptroller of the Currency issue will receive cert. briefing too; seems to be disagreement about its status — Ed.]
  • “The CFPB’s single-Director structure not only departs from historical practice. It also threatens individual liberty more than the traditional multi-member structure does.”
  • “In considering the Presidential power point, keep in mind that the CFPB repeatedly compares itself to the FTC. That comparison is wrong as a matter of history and liberty, as discussed above. But the comparison is also wrong as a matter of Presidential authority. When the three-judge panel first heard this case in 2016, some of the threats to Presidential power may have appeared theoretical. In 2017, those threats became much more concrete. In January 2017, the President designated new Chairs of the FTC, FCC, SEC, and NLRB, among other multi-member independent agencies. Meanwhile, the President was legally unable to designate a new CFPB Director. The President’s inability to do so led to a variety of episodes throughout 2017 that highlighted the diminution of Presidential power over the CFPB, as compared to the President’s power over the traditional multi-member independent agencies. For example, during 2017, the Director of the CFPB took several major actions contrary to the President’s policy views.”
  • “The CFPB violates Article II of the Constitution because the CFPB is an independent agency that exercises substantial executive power and is headed by a single Director. We should invalidate and sever the for-cause removal provision and hold that the Director of the CFPB may be supervised, directed, and removed at will by the President. I respectfully dissent.”

Pages 247 to 250 — The Randolph Dissent: Judge Randolph thinks the D.C. Circuit should wait for the Supreme Court’s decision in Lucia: “Given this state of affairs, the en banc majority should withhold any order remanding this case to the CFPB until the Supreme Court decides Lucia.”

You’re welcome.

UPDATE: Or maybe there won’t be a cert. petition. We’ll see.

* See Max Weber.

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