On June 21, 2018, in deciding a motion to dismiss a complaint
brought the Consumer Financial Protection Bureau
("CFPB")and the State of New York, Judge Loretta Preska
of the U.S. District Court for the Southern District of New York
held that the CFPB's structure is unconstitutional.
Previously the D.C. Circuit, sitting en banc in PHH
Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018), had held that
Title X of the Dodd-Frank Act, which "established the CFPB as
an 'independent bureau' within the Federal Reserve
System," was validly enacted. Judge Preska disagreed with the
panel and adopted the minority view proposed by the dissent in that
case. First, she accepted Judge Brett Kavanaugh's conclusion
that the CFPB was unconstitutionally structured because it is an
"independent agency that exercises substantial executive power
and is headed by a single Director." Namely, Judge Kavanaugh
took issue with the CFPB's unchecked authority vested in a
single director, where
