Five-to-Four: The Case for a Defensive Redesign of the CFPB.

Much has been written about the “agency design” of the Consumer Financial Protection Bureau (CFPB) over the past eight years. Scholarship in this area has primarily focused on why the CFPB may be unconstitutionally structured and whether that structure could survive judicial scrutiny should the issue reach the Supreme Court. Due in part to recent upheavals in the political landscape of the federal government—from the election of a conservative President who espouses a judicial-centric political strategy to the appointment of two staunchly conservative Supreme Court Justices—there is no longer a clear path forward for the CFPB, which is currently facing constitutional scrutiny at the Supreme Court. Having granted certiorari to the Ninth Circuit in a case upholding the constitutionality of the CFPB, the Court has already heard oral arguments and is expected to issue an opinion by early Summer 2020. In consideration of the pressures that the Bureau faces in the short term, this Note approaches the CFPB’s constitutional-design question from a future-oriented perspective, ultimately suggesting an answer to the Bureau’s critical existential question: How can it continue to exist as a useful administrative agency while maintaining some level of insulation from the whims of political change that will both inevitably and periodically disrupt its mission in the future? [ABSTRACT FROM AUTHOR]