President Donald Trump’s pick for the seat on the Supreme Court vacated by Justice Anthony Kennedy is no fan of the Consumer Financial Protection Bureau.
Brett Kavanaugh, who is a Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, was on a three-judge panel which declared the bureau’s structure unconstitutional in October 2016. The decision came as part of the CFPB’s case against mortgage servicer PHH Mortgage, which was dropped in June, ending a months-long saga.
He wrote the panel’s opinion, although their decision was later overturned on appeal, objecting to the relative independence of the agency, with its single director who can only be removed for cause. He said the 2010 Dodd-Frank Act which created the agency wrongfully placed “enormous executive power” in the director’s hands. Many critics of the bureau, including Republicans and those regulated by the CFPB, want to replace the director with a bipartisan, multi-member panel.
Kavanaugh has also expressed doubts about regulatory agencies in conflict with courts. In a 2017 dissent about the FCC’s net neutrality order, he gave indications he might disagree with the Supreme Court’s Chevron doctrine. That 1984 precedent says courts should tend to defer to federal agencies’ regulatory decisions when the agencies are interpreting ambiguous statutes.
Some consumer advocates were quick to lambaste Trump’s choice.
“Judge Kavanaugh has been a reckless and partisan jurist who has always seemed more interested in pleasing Wall Street and the conservative political establishment than he has in defending the constitution,” said Karl Frisch, executive director of the liberal consumer advocacy group Allied Progress. “He would be a disaster for consumers and the CFPB if confirmed to the Supreme Court.”
Bureau founder Sen. Elizabeth Warren (D-Mass.) also voiced her opposition to his nomination. “There’s a lot to dislike about Brett Kavanaugh’s record – including his hostility toward consumers,” she said in a tweet.