On January 9, two GOP lawmakers sent a letter to Vice President-elect Mike Pence urging the incoming administration to remove CFPB Director Richard Cordray “promptly after [President Trump’s] inauguration.” Stating that “[i]t’s time to fire King Richard,” Sen. Ben Sasse, a member of the Senate Banking Committee, and Sen. Mike Lee cited the D.C. Circuit’s October 2016 decision in CFPB v. PHH to argue that, once in office, President Trump has the constitutional authority to remove Director Cordray immediately. In pushing for Director Cordray’s ouster, the Senators noted, among other things, the CFPB’s decision to move ahead in the lame-duck session with regulations of arbitration clauses and payday loans, which they consider costly and “radically opposed to the Trump administration’s pro-growth agenda.”
As previously covered by InfoBytes, a majority of a panel of U.S. Circuit Court for District of Columbia concluded in October 2016 that the CFPB’s governance structure was unconstitutional, and, as a corrective measure, authorized the President to fire the Bureau’s sole Director at will—a ruling for which the Bureau now seeks rehearing en banc. In addressing this pending appeal, the Senators’ January 9 letter suggests in a footnote that, if the rehearing moves forward, the Justice Department should refrain from defending the CFPB.