Financial Regulation Scholars Amicus Brief in PHH Case

Here.  Deepak Gupta is counsel. Here's the Introduction and Summary of the Argument:

The Constitution requires public accountability for government agencies but does not prescribe how it must be achieved. It can be achieved in a variety of ways through agency design, and indeed, there is tremendous variation in agency structure. Public accountability can also be fostered through presidential action, congressional oversight, and judicial review.

The panel’s decision, however, would require either at-will presidential removal of the agency’s head or a multi-member commission structure. This wooden one-or-the-other requirement has no logical connection to the constitutional mandate of public accountability, which is better analyzed holistically, based on the entirety of an agency’s features.

Viewed holistically, the CFPB is a highly accountable agency. It was designed specifically in response to a lack of accountability by other financial agencies, even those that would formally satisfy the panel’s new either-or requirement. The CFPB is designed to address a specific type of accountability problem—regulatory capture—and comes with a battery of accountability mechanisms that have proven successful. The CFPB’s structure is a permissible example of how Congress—learning from its experiences of what works in regulatory agencies—can design a system that enhances rather than diminishes public accountability.


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