The Supreme Court has tapped Paul Clement of the law firm Kirkland & Ellis to support the constitutionality of the CFPB director's tenure protection in the Seila Law v. CFPB case in which the Court granted certiorari last week. Because the CFPB no longer defends its own constitutionality, Clement will be designated a court-appointed amicus curiae and will brief and argue the case as if he represented a party supporting the decision below upholding the CFPB's constitutionality. The CFPB and DOJ will argue for affirmance of the decision on a different ground: namely, that the tenure protection for the CFPB director should be invalidated but severed from the law, leaving the CFPB's exercise of its enforcement powers intact.
Clement is widely regarded as one of the leading advocates before the Supreme Court. He was Solicitor General in the George W. Bush administration and is generally associated with conservative positions. This will not, however, be the first major case in which he has argued a position that aligns with that taken by consumer advocates: In American Express v. Italian Colors Restaurant, he argued on the side of antitrust plaintiffs seeking to set aside an arbitration agreement that banned class proceedings. (The Court ruled in favor of the defendant, American Express.)
