Wake Forest Law Review
4Nov

The Fifth Circuit Finds the Consumer Financial Protection Bureau Unconstitutional

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By Dylan Ellis

The Consumer Financial Protection Bureau (CFPB) has been one of the most divisive government agencies since its inception in 2010. The CFPB was installed with far greater protections than most government agencies are afforded, including protections against both presidential[1] and congressional[2] influences on the agency’s decision making. As a result, the CFPB has faced multiple challenges against its constitutionality. Most notably in 2020 where the Supreme Court held that the requirement placed on the President which only allowed removal of the lone CFPB Director “for-cause” was an unconstitutional restraint on the separation of powers.[3] The CFPB suffered another judicial defeat on October 19th, 2022, where the Fifth Circuit held that the CFPB’s funding structure is unconstitutional under the Appropriations Clause of the Constitution.[4]

The Unique Funding Structure of the CFPB:

Appropriations allow Congress to exert control over agency action because the expenditure of federal agency monies that come from appropriations are conditioned upon compliance with prescribed policy.[5] Therefore, if Congress disagrees with an agencies activity, it can prohibit the use of appropriated funds for the given activity.[6] When the CFPB was established in the wake of the 2008 financial crisis, Congress believed that the agency could best carry out its mandate of protecting consumers if it were shielded from the political influences of future iterations of Congress.[7] Thus, while most agencies rely on annual appropriations from Congress for their funding, the CFPB does not.

Instead of relying on Congressional appropriations for funding, the CFPB requests from the Federal Reserve an amount determined by its lone Director to be “reasonably necessary to carry out the authorities of the Bureau.”[8] The Federal Reserve must grant the request, so long as the request does not exceed 12% of the total operating expenses of the Federal Reserve.[9] The funds transferred to the CFPB shall not be construed as Government funds or appropriated monies[10] and shall not be subject to review by the Committees on Appropriations of the House of Representatives and the Senate.[11] The Bureau’s ability to fund itself beyond Congress’s appropriation powers lies at the heart of the Fifth Circuit’s finding that the CFPB’s funding structure unconstitutional.[12]

The Fifth Circuit’s Reasoning:

The Court reached its conclusion by finding that the CFPB’s funding structure violates the separation of powers principles set forth in the Appropriations Clause of the Constitution.[13] The Appropriations Clause commands that, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” [14] The Supreme Court has interpreted the clause as limiting the power of the executive branch by ensuring Congress’s exclusive control over the federal purse.[15] Accordingly, any exercise of a power granted by the Constitution to one of the other branches of Government shall be limited by a valid reservation of congressional control over funds in the Treasury.[16]

The Fifth Circuit determined that the CFPB’s ability to unilaterally fund itself with “unappropriated monies” directly from the Federal Reserve—which is itself outside the appropriations process—has yielded an unprecedented “double insulation” from the appropriation powers of Congress.[17] The Bureau is further insulated by the express exemption from Congressional review of its funding.[18] According to the court, the Bureau’s unchecked funding structure renders the agency “no longer dependent and, as a result, no longer accountable” to Congress and, ultimately, to the people.[19] Therefore, Congress’s cession of its power of the purse to the Bureau violates the Appropriations Clause and the Constitution’s underlying structural separation of powers.[20] Accordingly, the Fifth Circuit vacated the CFPB rule in question on the grounds that it had been promulgated using unconstitutional funds.[21]

Going Forward:

The ruling opens the door to challenges against the CFPB for both future and prior action as nearly all the agency’s actions can be connected to the unconstitutional funding structure. In fact, parties that have been adversely affected by the CFPB began challenging their lawsuits as void in light of the Fifth Circuit’s holding almost immediately after the decision.[22] For example, on October 20th, TransUnion–who had been sued by the CFPB for violating a consent order through the continued use of deceptive marketing–cited the Fifth Circuit’s holding in a court filing supporting a motion to dismiss the suit.[23]

There are a few ways in which this conflict can be resolved. The CFPB could seek review of the decision before the entire Fifth Circuit; however, the odds that the decision is reversed are slim as seven of the sixteen active judges have already expressed their view that the funding structure is unconstitutional.[24] The Bureau could also seek review from the Supreme Court, but the odds are not in their favor once again as five of the justices who ruled against the CFPB in 2020 remain on the bench.[25] Ironically, the funding structure was put into place to protect the CFPB from Congress, however it seems most likely that a legislative fix will be required if the CFPB and its previous regulatory actions are to survive the Fifth Circuit’s decision.

  1. 12 U.S.C. § 5491(c). ↑

  2. § 549(a)(2). ↑

  3. Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020). ↑

  4. Cmty. Fin. Servs. Ass’n of Am., Ltd. v. Consumer Fin. Prot. Bureau, No. 21-50826, 2022 WL 11054082, at *12 (5th Cir. Oct. 19, 2022). ↑

  5. Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1363 (1988). ↑

  6. Id. ↑

  7. 156 Cong. Rec. 8931 (2010) (statement of Sen. Dodd) (“[T]he [CFPB’s] funding will be independent and reliable so that its mission cannot be compromised by political maneuvering.”). ↑

  8. 12 U.S.C. § 5497(a)(1). ↑

  9. § 5497(a)(1)-(2). ↑

  10. § 5497(c)(2). ↑

  11. § 5497(a)(2)(C). ↑

  12. Cmty. Fin., 2022 WL 11054082, at *12. ↑

  13. Id. ↑

  14. U.S. Const. art. I, § 9, cl. 1. ↑

  15. Cmty. Fin., 2022 WL 11054082, at *13. ↑

  16. Id. ↑

  17. Id. at *14. ↑

  18. Id. at *15. ↑

  19. Id. ↑

  20. Id. at *19. ↑

  21. Id. at *18. ↑

  22. TransUnion Defendants’ Notice of Supplemental Authority, Consumer Fin. Prot. Bureau v. TransUnion et al., No. 1:22-cv-1880 (N.D. Ill. Oct. 20, 2022). ↑

  23. Id. ↑

  24. See Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 220 (5th Cir. 2022) (Jones, J., Concurring) (four Fifth Circuit Justices find in concurrence that the CFPB has been unconstitutionally funded); See also Cmty. Fin., 2022 WL 11054082, at *12 (three other Fifth Circuit Justices find that the CFPB is unconstitutionally funded). ↑

  25. See Seila, 140 S. Ct. 2183 (2020). ↑

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21Oct

Weekly Roundup – 10/14-10/21

Categories: 4th Cir. Blog Weekly Roundup
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American Humanist Association v. Maryland-National Capital Park

In this First Amendment case, the Fourth Circuit reversed the District Court’s ruling that a 40-foot tall Latin cross, established as a monument to fallen soldiers of World War I, did not violate the Establishment Clause. The entire panel found the plaintiffs had standing to challenge the monument’s constitutionality, and a majority found that the Lemon test was satisfied, with one judge dissenting. Consequently, the Fourth Circuit found the Latin cross unconstitutional and reversed.

Borzilleri v. Mosby

In this First Amendment case, the plaintiff was relieved of her position as Assistant State Attorney following the election of her new boss, the defendant-State Attorney. The plaintiff sought damages for violations of her freedom of association and speech. The Fourth Circuit, in upholding the District Court’s dismissal of all claims, found the defendant was entitled to qualified immunity under the theory of political patronage.

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30Mar

Fourth Circuit Refuses to Prosecute Juvenile as an Adult

Categories: 4th Cir. Blog Criminal Cases
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By Malorie Letcavage

On March 30, 2016, the Fourth Circuit released its published opinion in the criminal case of U.S. v. Under Seal Defendant. The Defendant was a juvenile and federal law prohibits the public release of that juvenile’s name in association with the proceedings, so the juvenile was referred to as Defendant. Defendant was charged with murder in aid of racketeering in violation of 18 U.S.C. §1959(a)(1). This statute has a mandatory sentence of either death or life imprisonment. The government filed a motion in the district court to transfer the Defendant for prosecution as an adult for this offense. The district court denied the motion because the prosecution would be unconstitutional. The government appealed, and the Fourth Circuit affirmed, agreeing with the lower court that it would be against precedent and the constitution to sentence juvenile offenders to death or life imprisonment.

District Court Denied Motion for Transfer

The government’s motion for transfer was based on 18 U.S.C. § 5031, which removes juveniles from the ordinary criminal process. The act allows juveniles who are fifteen years old and above to be transferred from juvenile status if they have committed certain crimes and the transfer would be in the interest of justice. The court consider factors such as age, social background, nature of offense, and prior record in determining whether to transfer the juvenile.

In this case, Defendant was a few months shy of being eighteen when he participated in a gang-related murder. After the government’s motion to transfer the defendant, Defendant opposed the motion arguing that Supreme Court decisions held that juvenile offenders could not be sentenced to death or mandatory life imprisonment. Despite the interest of justice factors supporting a transfer, the district court agreed with Defendant that it would be unconstitutional to transfer and impose either of those mandatory sentences.

The court reviewed the recent court cases on point, stating that Roper v. Simmons held that juvenile offenders could not be sentenced to death, while Graham v. Florida prohibited sentencing juvenile offenders to life in prison without parole for non-homicide offenses. In Miller v. Alabama, the Court held that juveniles could not be sentenced to life without parole for all but the rarest cases where juveniles were irreparably corrupt. 18 U.S.C. §1959, which Defendant is charged under, only authorizes death or life imprisonment as punishments but the case law does not allow these punishments for a charge of murder in aid of racketeering.

Severability and Combination of Penalties Not Allowed 

The government posited the argument that the statute could be read to sever the problematic portions. The court explained that if legislation can function independently after an unconstitutional portion is severed, then it could be saved. The court found that the defining feature of a criminal statute is its punitive effect, and that if the unconstitutional punishments are removed from 18 U.S.C. §1959 there is no penalty provision. This lack of a penalty in a criminal statute invalidates it, and thus the statute cannot function independently.

The government also suggested that the statute could be restructured so that the punishment for kidnapping in aid of racketeering could be applied to murder in aid of racketeering, The Fourth Circuit soundly rejected this argument because to do so would be to overstep the judiciary’s role and trespass on the legislative role. The court refused to combine the penalties for two distinct criminal acts in the statute.

The Fourth Circuit also distinguished United States v. Booker by finding that nothing in that case allowed the judiciary to replace language in one provision with language not previously applied in a wholly separate provision. Booker looked to legislative intent in determining severability, but in this case there was no legislative intent available.

Government’s Arguments Rejected 

Furthermore, the court found that combining the penalties would violate due process. One of the notions of fairness stemming from the Constitution is the right to notice of what conduct is illegal and how severe the punishment for that conduct will be. The Fourth Circuit refused to look outside the boundaries of the statute for an alternative penalty since death and life imprisonment were not allowed because this would not give the Defendant fair notice of the punishment the crime would entail. The court held that it would not create new punishments outside of the authorized statutory punishments in the statute.

The court then distinguished other cases the government had relied on. It held that the cases cited did not give persuasive support because in this case the crime was committed after the Miller decision. It also held that other case law relied on only considered how to remedy a mandatory life sentence that was validly imposed at the time but later found to be unconstitutional, which was different than Defendant’s case. The court also rejected the government’s argument that its holding would cause the reversal of many convictions.

Fourth Circuit Affirms Denial of Motion to Transfer

The Fourth Circuit affirmed the district court’s decision to deny the government’s motion to transfer the Defendant to be tried as an adult. It held that because the charge had mandatory sentences that were prohibited when applied to juveniles, a transfer that would impose those sentences would be unconstitutional.

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14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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DSC_0289

By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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