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DOJ Asks to Present Oral Arguments in CFPB-PHH Hearing

Less than one month after filing an amicus brief in PHH Corp. et al v. CFPB arguing that the president should have the authority to fire the head of the CFPB for any reason, the Department of Justice (DOJ) has requested to weigh in during oral arguments at the May 24 en banc hearing in the case.

In the motion, filed with the consent of PHH and the CFPB, the DOJ asked the D.C. Circuit Court for 10 minutes of argument time in the rehearing, which was granted by the court in February in response to the CFPB’s petition. In October 2016, a three-judge panel of the court ruled in favor of PHH and deemed the leadership structure of the bureau unconstitutional, but the court’s granting of an en banc hearing voided that decision.

On March 17, the DOJ filed an amicus brief with the D.C. Circuit Court, in an indication that the government could be at least partially switching sides in the case after the departure of the Obama administration, which had backed the CFPB. However, the DOJ didn’t go as far as PHH—or the appellate court, in its original ruling—in claiming that the single-leader structure of the CFPB is itself unconstitutional. Instead, the brief argued that the remedy was simply to change the language in the Dodd-Frank Act, which created the CFPB, to enable the president to remove the agency head at will, rather than only for cause.

The D.C. Circuit has allocated 30 minutes per side for oral arguments during the en banc hearing. In its motion, the DOJ requested that, because its position in this case “does not fully align with either party,” it be given an additional 10 minutes, instead of sharing time with either PHH or the CFPB.

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